View issue - The Law Society of Ireland

Contents
LawSociety
Gazette
Regulars
News
Cover Story
A model decision
2
Viewpoint
12
Tech trends
40
Briefing
42
Council report
42
Committee
report
43
Practice notes
44
Legislation
update
45
Solicitors
Disciplinary
Tribunal
46
Personal injury
judgment
47
FirstLaw update
48
Eurlegal
51
People and
places
55
Obituary
57
Professional
information
14
Following the recent Naomi Campbell judgment, the ‘blockbuster tort’
of privacy has arrived in England. But is it relevant to practitioners
here? Without a doubt, says Pamela Cassidy
18 Modern love
A recent report has highlighted the need to
provide a broader definition of the family in
light of social changes. Geoffrey Shannon
explains why the Irish family law system now
requires a major overhaul
22
Golden moments
27
Talk yourself up
28
Riding the coat tails
32
The twilight zone
36
Cell division
58
COVER PIC: REX FEATURES
Peter O’Connor’s name has slipped from the national consciousness,
but at the turn of the century this solicitor was arguably the most
famous athlete in the world, writes Mark Quinn
Demand for the advanced advocacy programme
continues to grow. In response, a new course is
scheduled for November, says Lindsay Bond
Non-union employees can benefit from collective agreements
negotiated by trade unions. Anthony Fay looks at the concept of
‘bargaining fees’ and considers what is likely to happen in this
controversial area
Despite equality legislation, women are much less likely to be covered
by a pension plan. Consequently, they should prepare for retirement
early, advises Olive Donovan
Funding for stem-cell research continues to be a divisive issue
between EU member states. Niamh Pollak outlines the ethical and
legal debates
Editor: Conal O’Boyle MA. Assistant editors: Kathy Burke, Garrett O’Boyle. Designer: Nuala Redmond. Editorial
secretaries: Catherine Kearney, Valerie Farrell. Advertising: Seán Ó hOisín, 10 Arran Road, Dublin 9, tel: 837 5018, fax: 884 4626,
mobile: 086 8117116, e-mail: [email protected]. Printing: Turners Printing Company Ltd, Longford. Editorial Board: Pat Igoe (Chairman),
Conal O’Boyle (Secretary), William Aylmer, Tom Courtney, Eamonn Hall, Mary Keane, Ken Murphy, Michael V O’Mahony, Alma
Sheehan, Keith Walsh
The Law Society of Ireland can accept no responsibility for the accuracy of contributed articles or statements appearing in this magazine, and
any views or opinions expressed are not necessarily those of the Law Society’s Council, save where otherwise indicated. No responsibility for
loss or distress occasioned to any person acting or refraining from acting as a result of the material in this publication can be accepted by the
authors, contributors, Editor or publishers. The Editor reserves the right to make publishing decisions on any advertisement or editorial article
submitted to this magazine, and to refuse publication or to edit any editorial material as seems appropriate to him. Professional
legal advice should always be sought in relation to any specific matter.
Published at Blackhall Place, Dublin 7, tel: 01 672 4800, fax: 01 672 4877.
E-mail: [email protected] Law Society website: www.lawsociety.ie
Law Society Gazette
June 2004
Volume 98, number 5
Subscriptions: €57.15
1
News
ALL TOGETHER AGAINST CRIME
On 20 May, justice minister
McDowell announced
government approval to draft
the Criminal Justice
(International Collaboration)
Bill, 2004. This bill will provide
for amendments to the Criminal
Justice Act, 1994 and
transpose the 1996 section
46(6) regulations made under
that act into primary legislation.
The bill also gives effect to
four mutual assistance
instruments at EU level:
• The Convention on mutual
assistance in criminal
matters between EU member
states, signed at Brussels on
29 May 2000
• The protocol to that
convention, which provides
for mutual assistance in
relation to information on
bank accounts and
transactions
• The second additional
protocol, and
• The mutual assistance
aspects of the council
decision signed in Brussels
on 6 June 2003 concerning
an agreement between the
EU and the United States on
extradition and mutual legal
assistance.
Law Society means business,
says independent adjudicator
he message is getting
through that ‘the Law
Society means business’, the
society’s independent
adjudicator Eamon Condon
has said.
In his recently published
annual report, covering the
period from 1 September 2002
to 31 August 2003, Condon
writes: ‘I can happily report
that the level of timely and
appropriate response by
solicitors to correspondence
from the complaints section
has shown a dramatic
improvement. It is obvious that
the message is getting through
that the society, in its role as
regulatory body, means
business’.
However, the statistics
showed a slight increase in the
number of admissible
complaints: 1095, compared to
1039 the year before. Over
30% of those complaints were
generated by just 80 solicitors.
‘This stark statistic should
T
Condon: ‘dramatic improvement’
concentrate the mind’, notes
Condon.
Included in the latest figure
are 35 complaints concerning
compliance with the Solicitors
advertising regulations, which
came into effect on 1 February
2003. The number of
inadmissible complaints also
rose, from 194 to 344.
Commenting on the report,
Condon said he was not
concerned by the small
increase in the number of
complaints, as the Law Society
had worked hard over the past
year to publicise the
mechanisms for making
complaints against lawyers. He
also welcomed a marked
improvement in the speed and
quality with which complaints
were addressed. Almost 80% of
all complaints were dealt with
within 90 days.
Two issues stood out as
serious in the report, he said:
the constraints on the society
in investigating complaints
about solicitors in family law
proceedings, and the number
of solicitors attracting multiple
complaints, ‘many on a regular
and on-going basis’. Condon
noted that justice minister
Michael McDowell had
promised that the constraints
that currently prevent the Law
Society from investigating
complaints about solicitors
acting in family law cases
would be addressed in an
imminent court bill.
ONE TO WATCH: NEW LEGISLATION
New rule of the superior courts
concerning the ECHR Act, 2003
The practice direction concerning
the ECHR Act, 2003 that was
featured in last month’s Gazette
(p5) has now been partially
superseded by SI no 211 of
2004, Rules of the Superior
Courts (right of attorney general
and Human Rights Commission to
notice of proceedings involving
declaration of incompatibility issue
rules) 2004.
The statutory instrument reads:
‘1) The Rules of the Superior
Courts (SI no 15 of 1986) are
hereby amended by the insertion
after order 60 thereof of the
following order:
Order 60A
Right of attorney general and
Human Rights Commission to
notice of proceedings involving
2
declaration of incompatibility
issue
1) In this order “declaration of
incompatibility” has the
meaning it has in section 1(1)
of the European Convention on
Human Rights Act, 2003 (no
20 of 2003)
2) If any issue as to the making of
a declaration of incompatibility
shall arise in any proceedings,
the party having carriage of the
proceedings shall forthwith
serve notice upon the attorney
general and the Human Rights
Commission
3) Such notice shall state
concisely the nature of the
proceedings in which the issue
arises and the contention or
respective contentions of the
party or parties to the
proceedings
4) These rules may be cited as
the Rules of the Superior
Courts (right of attorney general
and Human Rights Commission
to notice of proceedings
involving declaration of
incompatibility issue rules)
2004.’
The practice direction still stands
in relation to proceedings under
section 3:
‘Contravention claims
In every claim for damages for
injury, loss or damage arising from
contravention of section 3(1) of
the European Convention on
Human Rights Act, 2003 (no 20 of
2003), the plenary summons shall
be headed as follows:
The High Court
In the matter of the European
Convention on Human Rights Act,
Law Society Gazette
June 2004
2003, section 3(1).’
And in relation to filing a copy with
the Central Office:
‘2.3. A copy of the said notice
shall be filed forthwith in the
Central Office of the High Court.’
It is a pity that the new SI did not
incorporate the practice direction
fully, and also that it did not make
clear that a case under section 3
could seek remedies other than
damages, such as injunctions or
declarations. The practice direction
in relation to section 3 will enable
the Courts Service to collect
statistics on cases in which the
convention is pleaded. G
Alma Clissmann is the Law
Society’s parliamentary and law
reform executive.
News
Society demands withdrawal
of ‘outrageous’ remarks
he Law Society has called
on the chairman of the
National Safety Council, Eddie
Shaw, to withdraw remarks that
he made about the legal
profession on RTÉ’s Morning
Ireland programme on 24 May,
writes Ken Murphy.
In the course of an interview
about levels of death on the
road, and the fact that the use by
gardaí of radar guns in speeding
cases had been found unlawful in
a District Court case, Shaw
twice suggested that the legal
profession was operating against
the common good and was
opposed, for its own interests, to
measures that would reduce the
levels of death and injury on the
roads.
Mentioning in particular the
Law Society’s response to the
setting up of the Personal
Injuries Assessment Board
(PIAB), he said: ‘The legal
industry has set out not just to
challenge legislation but really to
challenge what is a common
good, that is, the substantive
reduction that has taken place
both in the incidence of
collisions on the roads, but also
in the reduction in consequent
personal injury claims going
through the courts’.
Five hours later, in the top
news story on RTÉ radio’s News
at one programme, Law Society
director general Ken Murphy
responded to Shaw’s implication
that solicitors wished to see a
continuation of high levels of
death and injury on the roads.
Murphy said: ‘If it were true, it
would be a shameful thing – but
it’s not true, and it’s a shameful
thing for Mr Shaw to have said
it’.
Murphy continued: ‘I take
offence at that. I think every
solicitor in the country will take
offence at that. It seems a
completely gratuitous and
unworthy comment to make. It’s
a new low in debate, as far as we
T
Murphy: ‘cheap and unworthy’
are concerned, and I think that
Mr Shaw went much, much too
far. I don’t know Mr Shaw
personally, but I assume he’s an
honourable man and I think the
honourable thing for him to do
would be to withdraw these
remarks’.
Pressed by interviewer
Richard Downes on whether
solicitors had a vested interest
in ‘making a mess of the laws’
because of the work it generates
from people ‘who are doing
extremely dangerous things,
causing death and mayhem on
the road’, Murphy responded
that what lawyers were doing
was perfectly legitimate, and
was also in the common good.
‘It is clearly in the common
good that death and injury on
the road should reduce, and
ideally be eliminated, but there
is also another common good.
There is a common good in
seeing that people should only
be convicted of criminal
offences in accordance with the
law. That, also, is a common
good. It’s part of the rule of law
and is an essential cornerstone
of a democracy’, he said.
He pointed out that if the
law was truly flawed, and was
found to be so on appeal, by
way of case stated to the High
Court, then the Oireachtas
could proceed to fix the flaw.
Making it clear that solicitors
would be very pleased to see
further huge reductions in road
accidents, he said: ‘The record
will show, and I have made the
point many times in this studio,
that the proper answer to the
problem with insurance in
Ireland is to eliminate the
negligence culture and to
reduce accidents on the road
and accidents in the workplace’.
Turning again to Eddie
Shaw’s remarks on the radio
that morning, Murphy
concluded: ‘The proper thing
for him to do, instead of
implying that solicitors are
cheerleaders for death and
carnage on the roads, which is
absolutely outrageous, cheap
and unworthy of somebody in a
position like his, is to withdraw
these remarks’.
CORRECTION
In the article headlined Family values in last month’s issue (page
17), it was incorrectly stated that ‘a pension adjustment order
(PAO) is not available on divorce because the parties will no
longer be spouses’ (paragraph 3). This should have read ‘a
pension preservation order is not available on divorce …’.
Similarly, the sentence reading ‘The benefit of the PAO is that it
protects the spouse of the pension scheme member …’
(paragraph 5) should have read ‘The benefit of the pension
preservation order is that it protects the spouse of the pension
scheme member’. These mistakes occurred during the editing
process and we apologise to the author of the report, Keith
Walsh, for the errors.
Law Society Gazette
June 2004
LONGER OPENING HOURS
FOR COURT OFFICES
The Courts Service has
announced that the offices of
the Supreme and High Court
will be open from 10.30am to
4.30pm all year round. The
extended opening hours are
expected to take effect from
the long vacation.
EXTRA PUBLIC SEARCH
TERMINAL
A fourth public search terminal
has been added in the Central
Office. Users can now access
the Courts Service website
(www.courts.ie) from all the
public search terminals as well.
The website gives you access
to the on-line Legal diary as
well as other useful information.
LOCUMS REQUIRED
Anyone interested in locum
work should e-mail a copy of
their CV and a short covering
letter to Trina Murphy in the
Law School. They should also
state the area of law they are
interested in and the locations
they are prepared to travel to.
For further details, contact
[email protected] or tel:
01 672 4982, fax: 01 672
4991.
TRANSNATIONAL CRIME
CONFERENCE.
The International Bar
Association is holding its
seventh Transnational crime
conference in Dublin from 10-13
June. The conference will cover
issues such as investigation,
global policing and due process.
Among the participants will be
Judge Maureen Harding Clark of
the International Criminal
Court, justice minister Michael
McDowell, and the director of
public prosecutions, James
Hamilton. For further
information, visit
www.ibanet.org.
RETIREMENT TRUST SCHEME
Unit prices: 1 May 2004
Managed fund: 438.199c
All-equity fund: 104.153c
Cash fund: 254.971c
Long-bond fund: 113.253c
3
News
Murphy and Dowling go head to
head over fairness of PIAB
at Kenny’s radio show was
the venue for a recent
lengthy exchange of views
between Law Society director
general Ken Murphy and
Dorothea Dowling,
chairperson of the Personal
Injuries Assessment Board
(PIAB), on what PIAB is likely
to mean for the victims of
workplace accidents, for
whom it is a mandatory stage
in the compensation-seeking
process from 1 June, writes
Ken Murphy.
Dorothea Dowling, as
usual, predicted that, through
PIAB, personal injury claims
would be resolved with the
same level of compensation
from the claimant’s point of
view, but much more quickly
and cheaply without the
involvement of lawyers and
therefore ‘without the
litigation overhead’. Ken
Murphy sharply disagreed
with her on all of these
points.
On whether solicitors
would continue to be
involved, apart from the very
real need that accident victims
will have for solicitors’
services, he pointed out that
even at the highest levels of
PIAB it was expected that
solicitors would be retained in
most cases. He said: ‘I was
talking to PIAB’s deputy
chairman, senator Joe
O’Toole, after the launch on
Wednesday last, and he
acknowledged that he
P
Dowling: solicitors will tell clients if they have to go to PIAB
expected that, in the
overwhelming majority of
cases, people will still go to
solicitors right from the start’.
Murphy added: ‘Dorothea
and I were speaking at a
conference in Trinity about six
weeks ago and a question
came from the audience.
Dorothea was asked how
people would know they
would have to bring their case
to PIAB, and Dorothea’s own
words, I took them down
carefully at the time, were:
Their solicitors will tell them’.
A central theme of the
interview was whether PIAB,
in its composition and
operation, would be fair to all
parties, as Dowling claimed,
or if it was inherently biased
and designed to disadvantage
claimants, as Murphy asserted,
in his insistence that any
claimant who does not first go
IRISH FIRMS WIN AWARDS
A&L Goodbody was named Irish
law firm of the year 2004 at the
Chambers Awards in London
last month. The Chambers
Awards are sponsored by legal
publisher Chambers and
Partners. Meanwhile, McCann
4
FitzGerald was awarded Irish law
firm of the year by the
International financial law review
in recognition of achievements
in M&A, banking and capital
markets, and projects/public
private partnerships.
to a solicitor will leave
themselves at a considerable
disadvantage.
Murphy continued: ‘One of
our concerns is the inherent
bias, which we perceive will
exist in PIAB, in that the
insurance industry will pay for
PIAB’s operation. A claimant
will pay €50 while the
insurance company will pay
€850 on a case-by-case basis.
This will inevitably create at
least the perception, and
probably the reality, of a bias
towards the defence interest’.
‘The culture will come
from the top’, he continued,
to reinforce the point.
‘Dorothea Dowling, in the
course of her day job as chief
claims manager of CIE for
many years, very successfully,
has been picking holes in, and
undermining, accident
victims’ cases. The senior
management of the PIAB,
both the chief executive and
the senior management,
generally all come from
Hibernian insurance
company. We would say that,
unless people have someone
unambiguously on their side,
their family or local solicitor,
right from the start in the
correspondence that precedes
the case going to PIAB, they
may well find themselves at a
disadvantage’.
JESUITICAL LAWYERS
The Jesuits have arranged a
‘day of reflection’ for lawyers at
the Jesuit Centre of Spirituality
in Dublin on Thursday 23
September. This will be
followed by a discussion
evening on Thursday 30
September. The programme is
intended to ‘respond to the
constant demands of legal
practice which make it
extremely hard for a legal
practitioner to create time and
space for an inner life’.
According to the Jesuits, the
law ‘is an exceptionally
demanding profession which
creates demands upon a
practitioner’s time, conscience
and relationships with few
parallels in other occupations’.
And it adds: ‘The continuous
Law Society Gazette
June 2004
onslaught by the media upon
the role of lawyers in Irish
society is grossly misleading
when set against the daily
realities of legal practice
encountered by the vast
majority of solicitors and
barristers. The underlying
conviction giving rise to this
programme is that the value of
legal practice needs to be rearticulated, not just for the
good of legal practitioners, but
also for the common good and
for the advancement of a civil
society’.
For further information about
the programme, contact
Manresa House, Jesuit Centre
of Spirituality, 426 Clontarf
Road, Dollymount, Dublin 3,
tel: 01 833 1352.
News
NATIONWIDE
News from around the country
■ DUBLIN
Honours even
On behalf of the DSBA council,
John O’Connor recently
awarded honorary membership
to Mr Justice Joseph Finnegan,
president of the High Court,
and his judicial colleague
Michael Peart – both of whom
are former Dublin solicitors and
members of the association. At
a small reception in the High
Court president’s chambers,
O’Connor, along with DSBA
vice-president Orla Coyne,
honorary secretary Kevin
O’Higgins and programmes
director John P O’Malley, made
a presentation of a framed scroll
of honour and a Dublin Crystal
decanter.
Midsummer Ball
The Younger Members
Committee of the DSBA is
holding a Midsummer’s Ball on
Saturday 19 June in the
Gresham Hotel. This
pioneering event has been
organised by Keith Walsh and
his committee, and tickets can
be obtained from Keith on
tel: 01 492 6153 or Karen
Devine on e-mail:
[email protected].
Forthcoming events
DSBA programmes director
John P O’Malley advises of a
forthcoming seminar on a
subject that puts most of our
colleagues in a state of apoplexy,
VAT on property transactions. The
venue is the Westbury Hotel at
2.15pm on 21 June, and
speakers include Brian Bohan.
Please contact [email protected].
President of Ireland
The President of Ireland, Mary
McAleese, is to honour the
DSBA with a private audience
in mid-June. DSBA president
John O’Connor hopes to use
that occasion to create better
awareness among the profession
as to the existence of the
attended and well received. The
technology was amazing. All
solicitors’ practices in Kilkenny,
with just one or two exceptions,
are now going on-line. They
can get their dealing number
immediately and it facilitates
early registration of their
clients’ titles, he noted.
Golden times
The Dublin Solicitors’ Bar Association hosted a dinner in conjunction
with AIB chairman Dermot Gleeson SC in May to mark the careers of
solicitors who have been qualified for 50 years. Pictured at the event
are (from left) Mr Justice Michael Peart, Law Society president Gerard
Griffin, Helen Griffin (qualified 1947), DSBA president John O’Connor,
Jack Nagle (qualified 1939), Mr Justice Joseph Finnegan, president of
the High Court, and Dermot Gleeson SC
solicitors’ helpline – a facility
established, managed and
maintained by the DSBA for
many years and operating on a
nationwide basis, with
colleagues drawn from all
corners of the land.
loan cheques would never issue’.
The association had written
to the Conveyancing
Committee and was optimistic
that something would be done
to redress the balance between
solicitors and the banks.
■ CAVAN
Laughing all the way to the
bank
Solicitors are increasingly
having to do banks’ work, but
without being paid anything for
it, according to Rita Martin,
secretary of the Cavan
Solicitors’ Association. ‘The
banks are laughing at our
expense’, she said.
The association had recently
passed a resolution complaining
that the banks do not tell their
house-buying customers of the
various detailed non-legal
matters that they then insist
must be attended to. Banks
knew that solicitors would then
have to attend to these matters.
‘We then have to spend half the
day on the phone to these
lending institutions chasing
cheques – but we don’t get paid
for this time’, she noted. ‘If
solicitors concentrated only on
the legal documents – which is
only what we are paid for – and
did not do the non-legal work,
County registrar appointed
On a happier note, Cavan
solicitors were pleased to see
the recent appointment of local
colleague Joseph Smith as
county registrar. Joe, who
practised in Cootehill for many
years since qualifying as a
solicitor in 1984, is a popular
appointment. ‘We are
particularly pleased that a local
solicitor who knows the issues
facing practitioners from his
own daily work over the years
has been appointed’, said Rita
Martin.
■ KILKENNY
Land Registry access
On-line access to the Land
Registry is a major boost to the
profession and is a facility that
more and more solicitors should
adopt, according to Martin
Crotty, president of the
Kilkenny Bar Association.
The association recently held a
seminar with Land Registry
officials, which was well
Law Society Gazette
June 2004
■ SLIGO
Will to suceed
A recent ‘wills week’ was held
in Sligo, with participating
solicitors providing their
services free for people to make
wills. The event raised more
than €2,000 for local causes.
Last month, cheques were
presented to Sligo social
services and the Sligo branch of
the Irish Kidney Association.
‘Wills week was a great success
here’, said Sligo Bar Association
president Michele O’Boyle. ‘It
is important for people to make
wills. Many did so, and we
helped two local charities’. The
event attracted a lot of local
media coverage and publicity
and was good for the general
public, the local causes and the
solicitors’ profession, she
added.
■ WEXFORD
Continuing professional
development
There has been great demand
for places at the continuing
professional development
(CPD) courses that are being
run by the Wexford Solicitors’
Association, according to its
secretary John Garahy.
‘Geraldine Clarke, then
president of the Law Society,
and director general Ken
Murphy were here last year and
encouraged us to organise the
CPD seminars ourselves’, he
said. The association took up
the challenge and it has been an
on-going success, with more
than 40 solicitors, from the
total pool of 93 solicitors in the
area, attending each seminar. G
5
News
HUMAN RIGHTS WATCH
High Court gives effect to Strasbourg judgment
Alma Clissmann reports on developments in relation to the practical application of the
European convention on human rights
Quinn v His Honour Judge
Sean O’Leary, Judge Michael
C Reilly, Ireland, the DPP, the
AG and the Government of
Ireland, O’Caoimh J, High
Court, 23 April 2004
The applicant was charged
under section 52 of the Offences
Against the State Act, 1939 for
failing to account for his
movements, and in May 1997
was convicted and sentenced to
six months’ imprisonment. He
withdrew his appeal in January
1998 and was released in June
1998.
Meanwhile, in March 1997,
he had taken a case to the
European Court of Human
Rights (ECtHR). Giving
judgment in his case (Quinn v
Ireland 36887/97, 21 Dec 2000)
and the parallel case of Heaney
& McGuinness v Ireland
(34720/97), the court found
that compelling the applicants
to give an account of their
movements ‘extinguish[ed] the
very essence of [their] rights to
silence and against selfincrimination guaranteed by
article 6.1 of the convention’.
The judgment became final in
March 1997, and Quinn
received £4,000 in damages.
Although the ECtHR found
that Quinn’s conviction under
section 52 was a direct
consequence of a violation of
the convention, the conviction
remained in place and on
record. This had implications
for his employment and travel
prospects and other matters into
the future. In April 2001, his
solicitors wrote to the director
of public prosecutions and the
attorney general asking for their
consent to have the conviction
set aside. When this drew a
blank, judicial review proceedings were instituted to have the
applicant’s conviction quashed.
Among his arguments, the
applicant argued that section 52
was unconstitutional and void,
that the judgment of the
ECtHR was binding and that
article 29(3) of the constitution
required the state to repeal or
nullify legislation authoritatively determined to contravene
an international treaty, in this
case, the ECHR. In fact, prior
to the ECtHR judgment, the
Supreme Court had held that
section 52 was constitutional
and that it did not constitute a
disproportionate interference
with the right to free speech
(Heaney v Ireland [1996] 1 IR
580).
The High Court judgment
O’Caoimh J’s judgment
surveyed the various arguments
made by the applicant and
respondents, the convention
jurisprudence concerning the
right to silence (Murray v
United Kingdom [1996] 22
EHRR 29, Saunders v United
Kingdom [1997] 23 EHRR 313,
and Quinn v Ireland), and
considered the authority of the
decision in Heaney v Ireland in
the light of the subsequent
decision of the Supreme Court
in Re National Irish Bank Ltd
(no 1 [1999] 3 IR 145). This
decision was crucial in the
reasoning of the ECtHR
because it was only in this case
that the legal position regarding
the admissibility of any
statements made by an arrested
person in a subsequent criminal
prosecution was clarified. The
Supreme Court held that the
evidence obtained pursuant to a
statutory demand could not be
admitted in a subsequent
criminal trial. The applicant
argued that this threw the
validity of the Heaney decision
into doubt, and therefore the
constitutionality of the law
under which he had originally
The Rules of the Superior Courts
have recently been amended to
accommodate the requirements
of the ECHR Act, 2003 – see
One to watch, page 2.
been convicted.
The respondents argued that
no international agreement is
part of the domestic law of the
state until incorporated by the
Oireachtas, and this went for
the ECHR at that time. So, the
court should not give priority to
the convention over domestic
law and the constitution, even
though there is an obligation on
the state to give effect to a
judgment of the ECtHR.
The judge also considered
arguments in relation to the
delay of the applicant in seeking
relief by means of this action.
From March 1997 (when the
application to Strasbourg was
made) or from January 1998
(when the applicant abandoned
his appeal in the Circuit Court),
there was a considerable delay
to May 2001, when these
proceedings were initiated.
However, after a lengthy
consideration of the law and the
facts, including the two strands
of proceedings (domestic and
under the convention),
O’Caoimh J decided to exercise
his discretion to allow the
application.
O’Caoimh J held himself
bound by the decision of the
Supreme Court in Heaney v
Ireland, upholding the
constitutionality of section 52.
He expressed himself satisfied
that a confession made in
pursuance of section 52 of the
1939 act would in principle not
be admissible in evidence in a
subsequent criminal trial unless
the court was satisfied that that
confession was voluntary. He
rejected the submission that
Law Society Gazette
June 2004
Heaney v Ireland was
incompatible with the reasoning
in Re National Irish Bank Ltd.
He did not accept that the
effect of the judgment of the
ECtHR is a requirement on the
state to repeal or otherwise
nullify legislation (including
section 52).
Finally, in all the
circumstances of the case, he
held that the interests of justice
required that he grant the
applicant the relief of an order
of certiorari in respect of the
conviction entered against him,
having regard to the unusual
circumstances of this case.
Implications for redress under
the ECHR Act, 2003
During the Dáil debate on the
ECHR Bill, there was discussion
on how to deal with a
conviction or arrest which is
valid under the constitution but
is held to contravene the
convention – precisely the facts
of the Quinn case. The
consensus was that it would
have to be by way of presidential pardon (see the debate at
report stage, 21 May 2003).
It now appears, however,
subject to the possibility of an
appeal, that a discretionary
presidential pardon will not be
necessary to reconcile the
convention with domestic law,
and that the judiciary will be
prepared to exercise their
discretion to quash a conviction
that was obtained in contravention of the convention. G
Alma Clissmann is the Law
Society’s parliamentary and law
reform executive. The society hopes
to report regularly on developments
in the application of the ECHR
Act, 2003. Please send any
citations of the act in pleadings
or judgments to
[email protected].
7
News
Law Society welcomes
his really was an inspired
idea. I congratulate the
Law Society for bringing to
Dublin, for this historic
weekend, the leaders of the
legal professions in the ten new
members of the European
Union family. No more
appropriate initiative could
have been taken by the society
to mark this unique event’, said
President Mary McAleese in
Blackhall Place on 30 April.
On the following day, 1 May,
she was hostess to all 25 heads
of government of the expanded
European Union. She presided
at a moving flag-raising
ceremony in the sun-splashed
grounds of Áras an Uachtaráin.
It would be the highpoint of
Ireland’s EU presidency, writes
Ken Murphy.
While the preparations for
this were at their height,
however, she found an hour to
visit Blackhall Place, and, with
her usual informality, grace and
charm, participate in one of the
most prestigious events ever
hosted by the Law Society of
Ireland.
The society’s special guests
for the weekend were the
presidents of the national law
societies of Estonia, Lithuania,
Latvia, Poland, the Czech
Republic, Slovakia, Hungary,
Slovenia, Cyprus and Malta.
All ten accepted our
invitations. They were
accompanied in most cases by
their spouse or partner. In one
or two cases, additional
personnel travelled with them
to assist with translations.
The main purpose of the
weekend was to express the
friendship and welcome of Irish
solicitors towards lawyers in all
ten new member states. Both at
the business sessions and at the
social engagements, the key
objective for all was to discover
how we could help and learn
from each other.
Law lies at the very centre of
‘T
8
Law Society president Gerard Griffin welcomes President McAleese
to Blackhall Place
President McAleese greets Rytis Jokubauskas, secretary
general, and Audrone Bugeleviciene, president, both of the
Law Society of Lithuania
the entire EU project. All its
achievements result from
making and enforcing laws.
Given the post-war history of
most of the new EU member
states, the EU’s guarantees of
democracy and the rule of law
were particular cause for
celebration.
As more astute commentators pointed out, in historic
terms, the events of the
weekend represented
something even more
important than the European
Union expansion from 15 to 25
member states. It symbolised
the reunification of Europe
Gerard and Catherine Griffin present President McAleese with a bouquet
Law Society Gazette
June 2004
News
accession colleagues
The business session with the presidents of the law societies of the accession states in the council chamber
President McAleese and director general Ken Murphy look on
as president Gerard Griffin makes a welcome speech
Law Society Gazette
June 2004
President of Ireland, Mary McAleese
9
News
President McAleese greets Andrzej Kalwas, president of the Law Society
of Poland, with Teresa Stecyk and Maria Slazak, also from Poland
following the fascist and
communist tyrannies that had
oppressed nearly half of Europe
for more than half a century.
The Yalta agreement and its
effects are finally consigned to
the scrap heap of history.
The truth of these
observations was brought home
in the powerful, and at times
emotional, contributions made
by many of the law society
presidents when they addressed
the business session, as each was
invited to do in turn. Vladimír
Jirousek from the Czech
Republic related some of his
personal experiences as a lawyer
under the communist
dictatorship. Lawyers were
practically the only form of
opposition, and the legal
profession, as best it could,
resisted efforts to make it
simply an arm of the state.
It was not until late 1989 that
the Czech legal profession
could embrace the principles of
democracy and begin to develop
the self-regulation that is
essential to an independent
legal profession serving a free
people. Since 1989, the
profession in the Czech
Republic has experienced a
boom, growing from a few
hundred then, to 10,000 lawyers
now. Yet there was still further
need for reform. Efforts to
reintroduce elements of control
by a distrustful state needed to
be resisted. Accession to the EU
would be beneficial but would
not bring only advantages.
10
Ain Alvin, president of the
Law Society of Estonia, spoke
of the abolition in 1940 not
only of the independent legal
profession in Estonia, but of
Estonia itself. He described his
joy at being present in Dublin
and his pride that the legal
profession of Estonia is now
rightfully viewed as part of the
legal profession of Europe.
However, in a thoughtful
presentation, he identified
issues of concern such as the
tensions between big and small
member states, between big
and small law societies,
between democracy and
efficient decision-making
within law societies and the
need to develop new models of
discipline and education for
lawyers. There are only 425
independent lawyers in
Estonia, in 155 firms, most of
whom are based in, or near, the
capital Tallinn.
Law Society president Gerard Griffin, Vladimír Jirousek, president of
the Law Society of the Czech Republic, and Martin Vychopen, vicepresident of the Law Society of the Czech Republic
President McAleese with Miha Kozinc, president of the Law Society of
Slovenia, and Natasa Jelusic, also from Slovenia
Nikos Papaefstathiou, president of the Law Society of Cyprus, former
Law Society president Elma Lynch, Pat and John Fish
Law Society director general Ken Murphy addresses the distinguished guests
Law Society Gazette
June 2004
News
Chief Justice Ronan Keane in deep conversation with Kalvis Torgans and
Janis Grinbergs, president of the Law Society of Latvia
Rita and Dr Robert Mangion, president of Malta’s law society,
make a presentation to President McAleese
John Pinkerton, president of the Law Society of Northern Ireland,
and director general Ken Murphy
Rita Mangion and Dr Robert Mangion, president of the Law Society
of Malta, Dr Olga Herezeg and Laszló Fekete, president of the Law
Society of Hungary, and Stefan Detvai, president of the Law Society
of Slovakia
President McAleese leaving Blackhall Place, accompanied by
Ken Murphy and Gerard Griffin
Poland, by contrast, has close
to 30,000 lawyers with a
division in the profession
between legal advisers and
advocates. So we were told by
Andrzej Kalwas, who is
president of the 21,000 legal
advisers. The independence of
the legal profession is
guaranteed by article 17 of the
Polish constitution.
How essential it was to
defend the independence of the
legal profession was the main
theme of an impromptu address
to our guests from the attorney
general, Rory Brady SC, who
was one of many senior figures
in the legal profession in
Ireland to meet our visitors. He
thought that the Law Society’s
hosting of the conference was ‘a
really brilliant idea’, adding ‘I
am certainly going to mention
it to the taoiseach’.
The special guest speaker at
Law Society Gazette
June 2004
the dinner in Blackhall Place on
the night of Saturday 1 May
was Chief Justice Ronan Keane,
who also spoke of the special
role that independent legal
professions play in the
European Union and in
western democracies generally.
Most of the ten law society
presidents had never met each
other before. In expressing
thanks at the end, the Slovenian
society’s president, Miha
Kozinc, who is a former
minister for justice in Slovenia,
proposed that the ten had so
much in common that they
should arrange to meet again in
the future. ‘And the Irish
should chair the meeting’, he
announced to enthusiastic
applause.
It seems that a relationship
has been formed that will be
relevant to all for many years to
come. G
11
Viewpoint
The Chen decision: striking a
Ireland’s approach to the issue of citizenship goes against the spirit of the European Union, but
the Chen decision may turn out to be a timely coup for human rights, writes Conor Quigley QC
uch has been written and
discussed in the media
about the forthcoming
referendum on Irish citizenship,
which will limit the effects of
the constitutional amendment
caused by the Good Friday agreement. One of the many issues
that have been raised in support
of the need to have a referendum is the effect of the rights
of free movement and residence
in the European Union that
citizenship gives rise to.
In particular, reference has
been made to the Chen decision,
awaited from the European
Court of Justice (ECJ).
Recently, the opinion of the
advocate general has been
delivered in that case and
judgment is expected by the end
of this year. If the court follows
the advocate general, the
decision will be far-reaching and
of the utmost importance in the
field of non-discrimination and
fundamental rights.
M
The Good Friday agreement
A most important feature of the
Good Friday agreement was the
extension of the pre-existing
right to citizenship on birth in
McDowell: unsustainable argument
the Irish Republic to those born
anywhere in the island of
Ireland. This was reflected in
the amendment to the Irish
constitution, which now states
that anyone born in the island of
Ireland is entitled to be part of
the Irish nation. This acceptance
of the notion of belonging was
critical, for nationalists as well as
for unionists who wished to
have their birthrights protected
in a similar vein.
It was entirely correct that
this should be enshrined in the
constitution as representing a
grundnorm (a statement against
which all other statements can
be validated), while still leaving
it to the Oireachtas to
determine whether other
persons should also be entitled
to Irish citizenship and to
regulate the circumstances in
which citizenship might be lost.
The Good Friday agreement was
specifically approved by all the
people of Ireland voting on the
same day in joint referendums.
Unsustainable argument
It is now argued that there is a
‘loophole’ that causes harm to
our EU neighbours and that
the change in the constitution
is necessary to prevent
‘citizenship tourism’ in order
to comply with some duty of
solidarity under EU law. No
evidence has been produced to
show that any EU country was
actually concerned. In the light
of the Chen opinion, this
argument has become wholly
unsustainable.
Advocate general Tizzano
makes it clear that citizenship
remains a matter for each
member state to determine,
and that acquiring that
citizenship lawfully cannot be
regarded as an abuse. On the
contrary, a person endowed
with citizenship of a member
state of the EU is entitled, as a
matter of EU law, to have that
right upheld and respected.
Mrs Chen, a Chinese
national living in England,
deliberately gave birth to a
daughter in Northern Ireland
in order that the child would
have Irish nationality. Article
17 EC, coupled with directive
90/364/EEC, guarantees the
child – as an EU national – the
LAW SOCIETY DIPLOMA AND
T
he Law Society of Ireland offers a variety of diploma and certificate courses. These courses are
open to solicitors, barristers, trainee solicitors and members of the business community with the
requisite knowledge and experience. Diplomas and certificates take place in the Law Society’s headquarters at Blackhall Place.
The lecturing team are either solicitors, barristers, accountants or members of the business community, and are all approved by the Law Society. Candidates will be provided with the materials necessary to study for the diploma and, in certain cases, legislation will be provided. All of the courses culminate in examination(s), and successful candidates will be awarded a Law Society diploma.
You can fulfil your CPD requirement by attending a Law Society diploma course.
For further information, please access our website, www.lawsociety.ie. Click on diploma and certificate course on the home page and simply follow the drop-down menus, or write to us giving details
of your name, address and area of interest.
12
Law Society Gazette
June 2004
Viewpoint
blow for human rights?
right to move and reside freely
within the territory of the
member states, as long as she is
not a burden on their
resources. Luckily, Mrs Chen is
rather wealthy, so the child is
able to exercise her right to stay
in the UK.
Advocate general Tizzano
has held that Chen should also
be able to stay in the UK. His
decision (quite the contrary of
the Irish Supreme Court in its
recent decision on the rights
of non-national parents of
Irish citizens) is primarily
based on the notion that the
child’s right of residence
would be ineffective if she
could not have her parents
with her. He also invokes, as
being equally important, the
respect for family rights
enshrined in article 8 of the
European convention on human
rights. Moreover, since UK law
provided that a non-national
parent of a UK child national
would be automatically
entitled to reside in the UK, it
is discrimination contrary to
article 12 EC to deny that
same right in the case of
parents of a child national of
another member state.
Tizzano utterly rejected any
notion that these rights could
Conor Quigley: referendum at this time is seriously flawed
be rejected merely because
Chen had taken legal advice to
have her baby born in
Northern Ireland.
Boston or Berlin?
If, as is to be hoped, the ECJ
follows the recommendation of
the advocate general, a major
blow will be struck for the
protection of human rights of
children and their parents. This
is the true spirit of the modern
European Union. It also
reflects the spirit of the United
States. Those who invoke
Boston rather than Berlin in
praise of economic liberalism
are strangely at odds with the
ethos of the United States
when it comes to citizenship.
Under US law, citizenship is
granted on birth to anyone
born in the territory, regardless
of the reason for being there;
by contrast, Germany has been
castigated for decades because
of its harsh denial of citizenship
to ‘guest workers’ and their
descendants.
With its tradition of
emigration to America and the
UK, Ireland might have been
expected to have naturally
embraced the notion of
citizenship on birth rather than
through blood. It is the height
of hypocrisy to alter this
tradition just because Ireland is
now attractive to immigrants
for various, mostly economic,
reasons.
Given the shifting nature of
the justification for holding
this referendum – from
stresses on Dublin maternity
wards, to solidarity with EU
states, to tackling citizenship
tourism – and the shabby way
in which concerns about the
integrity of the Good Friday
agreement were discarded, it is
hard to disagree with the
argument that holding the
referendum at this time is
seriously flawed, without full
and proper consultation of all
interested parties and without
a comprehensive and informed
debate based on a rational
consideration of the facts.
We should be proud of the
fact that Ireland has become
more open and international in
recent years. That pride should
extend to welcoming as part of
the Irish nation all who are
born here for whatever reason.
A shift in the right to
citizenship away from a
birthright based on the place
of birth will be a most
shameful decision. G
Conor Quigley QC specialises in
European Union law at Brick
Court Chambers in London.
CERTIFICATE COURSES
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25 September 2004 – 12 March 2005
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2 October 2004 – 9 April 2005
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9 November 2004 – 11 June 2005
Diploma in e-commerce
5 February 2005 – 11 June 2005
Diploma in legal French
September 2004 – June 2005
Certificate in legal Spanish
2 November 2004 – 5 March 2005
Law Society Gazette
June 2004
WRITE TO:
Michelle Nolan,
information and professional
development executive,
Law School,
Law Society of Ireland,
Blackhall Place,
Dublin 7.
Tel: 01 672 4802.
Fax: 01 672 4803.
E-mail: [email protected].
Website: www.lawsociety.ie
13
Cover story
MAIN POINTS
Following the recent Naomi Campbell judgment, the ‘blockbuster tort’ of privacy has arrived in
England by way of the old common law breach of confidence action and article 8 of the ECHR.
But is it relevant to practitioners here? Without a doubt, says Pamela Cassidy
• Naomi
Campbell
judgment
• Right to privacy
• European
convention on
human rights
he House of Lords’ judgment in Naomi
Campbell’s action against the Daily Mirror
represents a seminal decision on two
issues: the impact of the European
convention on human rights in private
domestic law and the conflict between privacy rights
and free speech. The case underlines the potential
importance to practitioners in this country of the
European Convention on Human Rights Act, 2003,
which came into force on 31 December last year.
By a majority of three-to-two, the law lords
decided that the Mirror had infringed Campbell’s
privacy in disclosing information about the
supermodel’s treatment for drug addiction. There
was dissent on the issue of whether information
about the actual treatment was peripheral to
information that she was an addict and seeking
therapy from Narcotics Anonymous (which Naomi
accepted they could publish because she had lied
about her drug problems), but all the law lords
agreed that the old breach of confidence action now
protected the ‘right to respect for private life’
without the constraints of proving the existence of a
confidential relationship between intruder and
complainant.
T
permit the creation of a free-standing tort of privacy.
Baroness Hale answered ‘yes’: ‘The 1998 [Human
Rights Act] does not create any new cause of action
between private persons. But if there is a relevant
cause of action applicable, the court as a public
authority must act compatibly with both parties’
convention rights. In a case such as this, the relevant
vehicle will usually be the action for breach of
confidence, as Lord Woolf CJ held in A v B plc
([2003] QB 195, 202, para 4): The court is able to
achieve [compatibility with the convention] by absorbing
the rights which articles 8 and 10 protect into the longestablished action for breach of confidence’.
Nicholls LJ was even more forthright: ‘This cause
of action has now firmly shaken off the limiting
constraint of the need for an initial confidential
relationship. In doing so, it has changed its nature
… The continuing use of the phrase duty of confidence
and the description of the information as confidential
is not altogether comfortable. Information about an
individual’s private life would not, in ordinary usage,
be called confidential. The more natural description
today is that such information is private. The
essence of the tort is better encapsulated now as
misuse of private information’.
Mirror, mirror on the wall
The first crucial issue for the House of Lords to
consider was whether convention rights could extend
existing causes of action to cover privacy, since the
court had decided in 2003 that the introduction of
the convention into English domestic law did not
Eye of the beholder
An Irish court would not have to undertake the
somewhat artificial exercise of fitting privacy into a
breach of confidence action, because a general right
of privacy has been recognised as a constitutional
right since 1987 in the Kennedy telephone-tapping
A model
14
Law Society Gazette
June 2004
Cover story
PIC: REX FEATURES
case. Hamilton J ruled that ‘the right to privacy is
not an issue; the issue is the extent of that right’. And
in 1992 the High Court held that the constitutional
right to privacy and confidentiality were co-extensive
with the common law right to confidentiality
(Desmond v Glackin (No 2) – confidential information
obtained from the Central Bank).
But privacy balanced against free speech has
suffered a check. In 1994, the High Court confirmed
that the right to privacy is ‘an unspecified right
deriving from the constitution’ but held that privacy
protection ‘demanded the intervention of the courts’
only in ‘extreme cases’, and ‘in general it was
desirable that the legislature, and not the courts,
should prescribe the exceptions to the right of
freedom of speech’.
That case, M v Drury ([1994] 2 IR), involved an
injunction application by a wife and her five children
to prevent publication of an interview with her
husband in several newspapers, in which he blamed
the break-up of his marriage on the wife’s alleged
adultery with a priest. Reporters had door-stepped
the wife’s home, photographing her and the children
without consent. In refusing an injunction,
O’Hanlon J noted that the allegations did not
concern the intimacies of married life – rather, they
concerned adultery – and that the truth of the
allegations was not contested and much of the
material had already been published. He also noted
that neither wife nor husband would be named and
the photographs would not be used.
O’Hanlon clearly regarded free speech as being
entitled to a higher constitutional protection than
the right to privacy, even though the case concerned
low-value speech (he castigated the husband as
immature, irresponsible, selfish and self-indulgent).
The free speech versus privacy issue was addressed
in the Campbell case (Campbell v MGN Ltd [2004]
decision
Law Society Gazette
June 2004
15
Cover story
IT SAYS IN THE PAPERS
‘Where a
public figure
chooses to
make untrue
pronouncements
about his private
life, the media
will normally be
entitled to put
the record
straight’
As a result of the Campbell judgment, the media may
have to exercise caution with regard to certain issues.
These include:
• The state of a person’s health. But what about the
health of people in whom the public has a legitimate
interest, such as Tony Blair or (arguably) Brian
Curtin? After Campbell, the media would be wise to
consider carefully before publishing intimate details
of actual treatment. And Data Protection Act issues
(not explored here) could also arise
• Where a public figure chooses to make untrue
pronouncements about his private life, the media
will normally be entitled to put the record straight.
But there remains a residual right to privacy in
respect of areas of his life that he has chosen not
to make public
• Adultery. This is a difficult one. Hoffman LJ
distinguished Naomi’s case ‘from cases in which
(for example) there is a public interest in the
disclosure of the existence of a sexual relationship
(say, between a politician and someone whom she
has appointed to public office), but the addition of
salacious details or intimate photographs is
disproportionate and unacceptable. The latter, even
if accompanying a legitimate disclosure of the
sexual relationship, would be too intrusive and
demeaning’
• Photographs. ‘The publication of a photograph taken
by intrusion into a private place (for example, by a
long-distance lens) may in itself be such an
infringement, even if there is nothing embarrassing
about the picture itself’, warned Hoffman LJ
• Family life (already protected by article 41),
including the home and personal correspondence.
UKHL 22). Nicholls LJ, basing his decision on the
European convention, which gives equal prominence
to both rights, said: ‘The case involves the familiar
competition between freedom of expression and
respect for an individual’s privacy. Both are vitally
important rights. Neither has precedence over the
other. The importance of freedom of expression has
been stressed often and eloquently, the importance
of privacy less so. But it, too, lies at the heart of
liberty in a modern state. A proper degree of privacy
is essential for the well-being and development of an
individual’.
And Hope LJ said: ‘Neither article 8 nor article
10 has any pre-eminence over the other ... As
resolution 1165 of the Council of Europe (1998)
pointed out, they are neither absolute nor in any
hierarchical order, since they are of equal value in a
democratic society’.
The question for practitioners in this country is
whether the priority given to free speech in the
Drury case will survive the enactment of the
European Convention on Human Rights Act, 2003,
which incorporated the convention into Irish law
with direct effect. Section 2 of the act contains this
core provision: courts are now obliged to interpret
and apply rules of law in a manner compatible with
the state’s obligations under the convention
provisions.
Up close and personal
So far, so good. But do convention rights apply
between private individuals, as distinct from the
citizen and the state? This difficult question was also
considered in the Campbell case, where Nicholls LJ
said: ‘The values embodied in articles 8 and 10 are as
much applicable in disputes between individuals or
RIGHTS AND DUTIES
The European convention on human rights
Article 8
1) Everyone has the right to respect for his private
and family life, his home and his correspondence
2) There shall be no interference by a public
authority with the exercise of this right except
such as is in accordance with the law and is
necessary in a democratic society in the interests
of national security, public safety or the economic
well-being of the country, for the prevention of
disorder or crime, for the protection of health or
morals, or for the protection of the rights and
freedoms of others.
Article 13
Everyone whose rights and freedoms as set forth in
this convention are violated shall have an effective
remedy before a national authority, notwithstanding
that the violation has been committed by persons
acting in an official capacity.
16
Law Society Gazette
June 2004
European Convention on Human Rights Act, 2003
Section 2
1) In interpreting and applying any statutory provision
or rule of law, a court shall, in so far as is possible,
subject to the rules of law relating to such
interpretation and application, do so in a manner
compatible with the state’s obligations under the
convention provisions
2) This section applies to any statutory provision or rule
of law in force immediately before the passing of this
act or any such provision coming into force thereafter.
Resolution 1165 (1998) of the Council of Europe
11) The assembly reaffirms the importance of
everyone’s right to privacy, and of the right to
freedom of expression, as fundamental to a
democratic society. These rights are neither
absolute nor in any hierarchical order, since they
are of equal value.
Cover story
Hold the front page
So what is privacy and what type of information
might be protected?
In Ireland, definitions prior to the 2003 act
included ‘a complex of rights, varying in nature,
purpose and range, each necessarily a facet of the
citizen’s core of individuality within the
constitutional order’. The many aspects of the right
of privacy ‘would all appear to fall within a secluded
area of activity or non-activity which may be claimed
as necessary for the expression of an individual
personality, for purposes not always necessarily
moral or commendable, but meriting recognition in
circumstances which do not endanger considerations
such as state security, public order or morality, or
other essential components of the common good’.
In Campbell, the court considered definitions of
privacy from Australia (whether disclosure of the
PIC: REX FEATURES
between an individual and a non-governmental body
such as a newspaper as they are in disputes between
individuals and a public authority’.
Hoffman LJ agreed: ‘I can see no logical ground
for saying that a person should have less protection
against a private individual than he would have
against the state for the publication of personal
information for which there is no justification’.
Would the courts here agree? The answer may lie
in article 13 of the convention, which requires states
to provide an effective remedy for breach of a
convention right (article 13 is a convention provision
under the 2003 act, but has not been directly
incorporated into English law by their 1998 act, and
so did not inform the reasoning of Nicholls and
Hoffman LJJ). If article 8 privacy values are
recognised here as having equality with free-speech
values in private cases (as distinct from cases
involving an ‘organ of the state’), the media is likely
to face greater restriction.
Naomi Campbell:
judgment means that
the media will have to
be more cautious
HE SAID, SHE SAID
‘What’s important for me is that
people in recovery should be free
to receive treatment without fear
of press intrusion – and that’s
what today’s judgment
guarantees’
Supermodel Naomi Campbell
after the House of Lords verdict
‘This is a very good day for lying,
drug-abusing prima donnas who
want to have their cake with the
media and the right to then
shamelessly guzzle it with their
Cristal champagne. If ever there
was a less deserving case for
creating what is effectively a back-door privacy law,
it would be Ms Campbell, but that’s showbiz’
Reaction of then Mirror editor Piers Morgan
information would be highly offensive to a person of
ordinary sensibilities) and North America (where
disclosure of private life material would be highly
offensive to a reasonable person and not of
legitimate public interest). But the court adopted a
more simple formulation, based on article 8: respect
for the private life and personal information of an
individual where there is a reasonable expectation
that the information will be kept private. Nicholls
LJ was careful to confine the tort to misuse of
private information: ‘the present case concerns one
aspect of invasion of privacy, wrongful disclosure of
private information’.
Which brings us back to the balance between
privacy and free speech. Lord Hope explained how
this will work in practice: ‘Any interference with the
public interest in disclosure has to be balanced
against the interference with the right of the
individual to respect for their private life ... The test:
whether publication of the material pursues a
legitimate aim and whether the benefits that will be
achieved by its publication are proportionate to the
harm that may be done by the interference with the
right to privacy’.
Hope LJ also relied on the jurisprudence of the
European Court of Human Rights, citing Dudgeon v
UK: ‘The more intimate the aspects of private life
which are being interfered with, the more serious
must be the reasons for doing so before the
interference can be legitimate’. G
Pamela Cassidy is a partner in the Dublin law firm
BCM Hanby Wallace.
Law Society Gazette
June 2004
17
Family law
MODER
MAIN POINTS
A recent report has highlighted the need to provide a
broader definition of the family in light of social changes.
Geoffrey Shannon explains why the Irish family law system
now requires a major overhaul
• Recent report
on family life
• Changing
nature of
families in
Ireland
• ECHR and the
Irish
constitution
18
n February, the minister for social and family
affairs launched a report on family life in
Ireland. The report, Families and family life in
Ireland: challenges for the future, identified the
issues that arose during public consultation
fora hosted by minister Mary Coughlan last year.
The minister held that state policy should not
favour one family form over another. Alluding to
the fora discussions, she stated: ‘Given the major
social and demographic changes that have occurred
in Ireland in recent years, it is necessary now to
bear in mind the different forms of family in
developing policies to promote the well-being of
individual members and social cohesion, a point
that came through from many participants at the
fora’. However, minister Coughlan stated that she
did not favour constitutional change to reflect
government policy.
The existing legislative framework does not
reflect the on-going changes in family structures
(see panel, page 21). The reluctance to legislate in
this area must now be addressed as a matter of some
urgency. As Claire Archbold notes in her paper on
divorce in the Northern Irish context: ‘Marriage is
no longer the only, or even the preferred, life choice
for enormous numbers of people, even in Northern
Ireland, and if our legal system ignores these trends,
it risks becoming irrelevant, and worse, providing
no protection to people who may be in great need
of it’. (Shannon [ed], The Divorce Act in practice
(Dublin, Round Hall, 1999).
This does not prevent marriage being regarded as
a type of utopia representing durability, security and
I
Law Society Gazette
June 2004
Family law
N LOVE
PIC: STOCKBITE/REX FEATURES
stability in a relationship. As Mrs Justice HeureuxDubé noted in Canada (Attorney General) v Mossop:
‘It is possible to be pro-family without rejecting less
traditional family forms. It is not anti-family to
support protection for non-traditional families. The
traditional family is not the only family form, and
non-traditional family forms may equally advance
true family values’ ([1993] 1 SCR 554 at p634).
Primary unit of society?
Why is the legal definition of ‘family’ in Ireland so
rigid, so inflexible and fixed? The answer to this
question lies in article 41 of the constitution, which
recognises the family as the natural and primary unit
group of society. The family that the constitution
sees as deserving such protection is the nuclear
family based on marriage alone. The institution of
marriage therefore enjoys a privileged position in
the Irish constitutional order. Article 41.3 of the
constitution provides that the state shall ‘guard with
special care the institution of marriage on which the
family is founded and protect it against attack’.
The Irish courts have remained steadfast in
asserting the exclusivity of the constitutional
‘family’. The courts cannot be accused of
inconsistency in this regard. The rights that the
constitution guarantees do not belong to individual
family members but to the family unit as a whole.
The constitution fails, for example, to recognise the
child as a legal person with individual rights to
which separate representation must be given. It lacks
a child focus. In summary, parents have inalienable
and imprescriptible rights – rights that cannot be
lost by the passage of time. By contrast, child rights
are subordinate to parental rights.
In the face of such a restrictive interpretation of
the ‘family’, individuals have sought redress under
international law through international human
rights treaties. The most significant international
human rights treaty from an Irish perspective is the
European convention on human rights (ECHR).
Law Society Gazette
June 2004
19
Family law
Indeed, it is in relation to the concept of ‘family life’
that the European Court of Human Rights (ECtHR)
has been most expansive (see panel below).
Article 8 of the ECHR guarantees, as a basic
right, the right to respect for private and family life,
home and correspondence. From very early on, the
ECtHR indicated that the protection afforded by
article 8 did not depend on the existence of formal
legal ties between the individuals involved. It is
concerned more with the substance rather than the
form of the relationship. The convention, unlike the
Irish constitution, makes no distinction between the
family life of a marital and non-marital family. The
law in Ireland, on the other hand, leans strongly
against the non-marital family. De facto families are
effectively outside the ambit of legal protection in
Ireland. Cohabitation agreements, for example, are
not generally recognised by Irish law, as such
contracts are viewed as contrary to public policy and
so are unenforceable. The High Court has recently
stated that unmarried people are ‘free agents’ who
owe no duty to each other.
Obligations of the state
The European Convention on Human Rights Act, 2003,
signed into Irish law on 30 June 2003 and effective
since 31 December 2003, now guarantees that the
Irish courts, in interpreting and applying any
statutory provision or rule of law, shall so far as is
possible do so in a manner that is compatible with
the obligations of the state under the ECHR. Where
this is not possible and where no other legal remedy
is adequate and available, the High Court and the
Supreme Court may grant declarations of
incompatibility in relation to legislation and awards
of damages against ‘organs of the state’ (for example,
health boards but not the courts) that act in a
manner contrary to the state’s obligations under the
ECHR. Prior and subsequent legislation may be
declared to be incompatible with the convention.
The 2003 act facilitates the bringing of cases
involving alleged breaches of rights under the
ECHR in Irish courts.
The European Convention on Human Rights Act,
2003 has been incorporated at a sub-constitutional
level. If there is a conflict between a provision of the
constitution and the convention, the constitution
prevails. This is to be regretted, in that the ECtHR
has on a number of occasions found Ireland to be in
breach of the convention standard for the protection
of family rights in situations where the Irish courts
had found the law at issue not to be in breach of the
constitution. For example, in 1994 the ECtHR was
critical of the Supreme Court’s treatment of Joseph
Keegan, an unmarried father who unsuccessfully
objected to his child being adopted without his
consent.
The court held that the father’s rights under
article 6 of the convention (which provides for the
right to a fair hearing) and article 8 had been
violated. Article 8 was applicable, the ECtHR
emphasised, despite the fact that the natural parents
of the child were never married to each other. For
two years prior to the making of the adoption order,
the mother and father had been living in a stable
relationship and that, essentially, formed a family for
ECHR purposes.
Alluding to article 6, the court held that the
father’s right to a ‘fair and public hearing by an
independent and impartial tribunal’ had also been
violated. Effectively, the father had ‘no rights under
Irish law’ to challenge the decision to place his child
for adoption, either before the adoption board or
before the courts. Indeed, he had ‘no standing in the
adoption procedure generally’.
In light of this, the failure to establish a
guardianship register in the recently-enacted Civil
Registration Act is a missed opportunity. Section 4 of
the Children Act, 1997 introduced a new and
simplified procedure for appointing a natural father
as guardian of a non-marital child, which does not
involve a court appearance but merely requires the
execution of a statutory declaration. There are
practical difficulties with the operation of this section.
For example, where does one ‘file’ the declaration or
what happens if this declaration is lost?
Therefore, in the ‘family life’ arena, there will
continue to be cases where a remedy for a breach of
THE EUROPEAN ‘FAMILY’
The wider definition given to the term ‘family’ by the ECHR can be
gleaned from the jurisprudence of the European court. In Berrehab v
The Netherlands (1989), for example, the ECtHR held that the
traditional family relationship between a divorced man and his marital
child did not cease to exist on the separation or divorce of the
parents. In Kroon v The Netherlands (1994), the relationship between
a man and a child conceived during an extra-marital affair, which
amounted to a long-term relationship wherein the parties had four
children by the time of the application, constituted a family within the
meaning of article 8 of the ECHR. In Boyle v UK (1995), family life
was held to exist between an uncle and a nephew. And in
Boughanemi v France (1996), family life was held to exist where the
father could show a close relationship to the child.
Family life under the ECHR constitutes not only relations between
20
parents and their children, but also extends to grandparents and
grandchildren. For other relationships, it is necessary to produce
evidence of a real and close family tie. The existence of family life is
therefore a question of fact and degree. Family life, for example, has
been held by the ECtHR to include the relationship between a foster
parent and a foster child, although the court has noted that the
content of family life may depend on the nature of the fostering
arrangement. This broad view of family life is in marked contrast to
that traditionally taken by the Irish courts, and it is not surprising that
article 8 has featured prominently in the Irish cases that have come
before the ECtHR.
More than in any other area of law, the development of conflict is
now likely between the Irish domestic concept of the family and
concepts set down by the ECtHR.
Law Society Gazette
June 2004
Family law
an ECHR right cannot be procured in the Irish
courts, with the only avenue at the disposal of such
litigants being an application to the Strasbourg
court.
Constitutional imperatives
There is a need for a constitution that affords equal
rights to all families. We should not forget the
children of these families, who are a voiceless and
vulnerable minority group in society. Indeed, the
constitutional position of these children has proven
to be far from secure. It hardly needs to be stated
that the measure of a democracy is the manner in
which the needs of the most vulnerable are
considered and met. That said, one notable feature
of the Irish family law system is the relative
invisibility of children. For example, children are
caught in the crossfire of relationship breakdown.
Currently, with no way of exercising their rights,
children are in a uniquely vulnerable position in
that they cannot exercise their rights during
childhood. The constitution should be amended to
contain a specific declaration on the rights of
children.
The current government has taken steps towards
improving the family law system. For example, the
need for some form of national machinery to
advance the development of support services has, in
part, been met by the Family Support Agency. A
more tangible link between the court system and
support services should also be created, as in New
Zealand.
A lot done, more to do
It is time that the government took a more
‘functional’ approach to the family, an approach
based on the fact of the parties living together rather
than the nature of the relationship between the
parties. This approach was adopted in section 151 of
the Finance Act, 2000, which established a new
‘principal private residence relief’ designed primarily
to offset the taxation liability that might arise where
one person dies leaving any interest in a dwelling
house to another person sharing the house, subject
CHANGING FACE OF THE FAMILY
The issues highlighted in the report on family life are also reflected in the recent
census figures. These figures have highlighted the fact that new family forms are
on the increase. It is to be particularly noted that the number of lone-parent
families is rising. The number of divorced people has risen from 9,800 in the 1996
census to 35,100 in the 2002 census, while the number of separated (including
divorced) people has increased from 87,800 in 1996 to 133,800 in 2002. There
has also been a significant 35% increase in the number of cohabiting couples, who
now make up one in 12 family units. In fact, the number of cohabiting couples has
risen since 1996 from 169,300 to 228,600.
Of the 15,909 births registered in the third quarter of 2003, 4,981 (31.3%) of
all births were outside marriage. In Limerick city for this period, births outside
marriage accounted for 55% of all births. Throughout Europe, and beyond, similar
trends emerge. In fact, in Iceland in 1998, two out of every three births were
outside marriage. One of the enduring ironies is that the number of children born
outside of marriage in Ireland is greater than the European average of one in four
births.
to certain conditions.
Since the adoption of the constitution in 1937,
the nature of the Irish family has changed
dramatically. There is little doubt that the Irish
family law system now requires nothing less than a
major overhaul if it is to meet the increasing
demands placed on it. The law must now root
itself in reality, and not emotive or traditional
rhetoric.
The time is now ripe to consider changing the law
to facilitate a broader and more inclusive definition
of the ‘family’ in a manner that will promote and
foster the best interests of children. This may
involve amending article 41 of the constitution. We
need to depart from a system of family law where
legal status alone is the sole determinant of family
rights and privileges. Let us hope that the recently
published report on family life will provide the
impetus for this new approach to family law. G
Geoffrey Shannon is a solicitor and the Law Society’s
deputy director of education. He is the author of
Children and the law and is the Irish expert on the
Commission on European Family Law.
Law Society Gazette
June 2004
21
Legal profession
Golden m
MAIN POINTS
Peter O’Connor’s name has gradually slipped from the
national consciousness, but at the turn of the century
this solicitor was arguably the most famous athlete in
the world, writes Mark Quinn
• Solicitor Peter
O’Connor
• Irish Olympic
glory
• Lawyer
athletes
22
s sports lovers all over the world look to
Athens this summer for the 28th
Olympiad, it is appropriate to
remember one of Ireland’s greatest
sporting heroes, Peter O’Connor, one
of many Irishmen to win Olympic gold before the
founding of the Irish Free State.
In August 1901, O’Connor, a managing clerk in
Daniel Dunford’s solicitor’s practice in Waterford
city, leapt from obscurity to fame when he
established a new long-jump world record of 24 feet,
113/4 inches at Ballsbridge. In those days, the barrier
of 25 feet was something akin to the four-minute
mile. No man had ever leapt so far, and O’Connor
was seen to be redefining the boundaries of human
possibility. His world record would endure for
almost 20 years and remain a national record until
1990, when Carlos O’Connell became the first
Irishman to surpass O’Connor’s mark. From 1901 to
1906, O’Connor won an unprecedented six
consecutive English AAA long-jump championships,
then considered world championships.
He is chiefly remembered, however, for his
Olympic successes and exploits at the Intercalated
Games at Athens in 1906. O’Connor took gold in
the hop, step and jump and silver in a highly
contentious and controversial long-jump competition
in which an American judge was accused of
‘measuring in his own athlete’. English judges had
refused to officiate the long-jump competition, as
O’Connor had lodged an official protest with the
organising committee some days before when he,
Con Leahy and John Daly, the three Irish
participants at the games, discovered they were
registered as part of the British team.
When the long jump was over and as the Union
Jack was raised to mark his silver placing, O’Connor
climbed a pole in the center of the stadium and,
A
Law Society Gazette
June 2004
Peter O’Connor winning gold in Athens in 1906
perched some 20 feet high and before a crowd of
some 60,000, he unfurled a large green flag with an
immaculately embroidered gold harp and the words
Erin go bragh (Ireland forever) displayed on it. His
actions, the first overtly political act of the modern
Olympics, were calculated to cause maximum
embarrassment to the Greek and English royal
families, who were in attendance. O’Connor
returned to Ireland a national hero and, retiring
from athletics at the age of 34, set his mind on
developing his legal career.
Great leap forward
After Peter O’Connor’s retirement from athletics in
1906, he concentrated on his legal career, finally
Legal profession
moments
significant moment for a largely self-educated man
from a modest background. O’Connor’s steady rise
through the echelons of the Irish legal world
reached its zenith in 1932, when he became vicepresident of the Incorporated Law Society of
Ireland, whose Council he sat on for ten years.
As a solicitor, O’Connor had a reputation for
being a great listener and his clients came from all
walks of life, backgrounds and social strata. He was
an immensely popular figure on the Waterford
scene and had a reputation for steely performances
in court. The nervous energy that O’Connor
harnessed to push himself to the limits of his
potential in his athletics career found a natural
outlet in courtroom battles. A writer for the
Waterford Star said in 1930: ‘I have never known any
lawyer who takes his client’s case to heart like him. He
seems to become his client! His “set” for crossexamination is a fighting attitude – no subtle questions
or deceptive mannerisms. You know he is hostile to you,
and your “death” is his pleasure! His address to the
bench is usually a clear, lucid statement – trenchant if
the case demands it, or on a softer key if this looks
wisest! He seems to be me to be always retarding a
wonderfully exuberant nature, for explosions happen
when there is too much steam!’
qualifying as a solicitor in 1912 at the age of 40.
In the early 1920s, he took over Dunford’s
practice after an intriguing dispute with his
employer, which has only recently come to
light. O’Connor had worked in Dunford’s office
since 1898 at a fixed salary, with the
understanding that, in time, he would take over
the business. After the breaking of promises,
outside interference and double-dealing,
O’Connor found his position under threat,
eventually being forced to buy Dunford’s practice
in far from ideal circumstances. The purchase led
to the renaming of the practice as Peter
O’Connor & Son and, then close to 50, Peter
O’Connor at last became his own boss, a
40 medals on his chest
Law Society Gazette
June 2004
Jumpin’ Jack flash
Peter O’Connor was never one to shirk a
challenge and earned a reputation as a ‘fighting
lawyer’, willing to take on even the most difficult
and doubtful of cases. Perhaps as a result of this
standing, he became a key player in one of the
most celebrated and mysterious cases in Irish legal
history, the case of the missing postman in 1930.
Following the disappearance of Laurence Griffin
at Stradbally, Co Waterford, on Christmas Day
1929, ten people were eventually charged in court
with his alleged murder and with disposing of his
body to prevent an inquest. The case attracted
huge media attention, as two gardaí stationed in
Stradbally figured among the accused. Seven of the
accused were represented by O’Connor, who
instructed MJ Connolly BL.
A special court was set up, the accused being
23
Legal profession
LAW OF (ABOVE) AVERAGES
The fact that Peter O’Connor was both a solicitor and a world-class
jumper may seem of little consequence, but in the late 19th and early
20th centuries, lawyers and judges seemed to have an uncanny
predilection for long jumping, leading a journalist to note in 1925: ‘In
sport, the lawyer has also played a prominent part, and in one
particular branch has established a world’s record which no member
of any other profession or of any trade can ever hope to equal. The
branch referred to is athletics and the particular event, broadjumping’.
A cursory glance at the medallists in the controversial long-jump
competition at Athens in 1906 provides adequate evidence to
support this contention. Myer Prinstein, who was awarded gold, was a
law graduate of Syracuse University and was practising in New York.
O’Connor, who took silver, had been a managing clerk in Dunford’s
Waterford office for eight years. Hugo Friend of the United States,
who won the bronze medal, later became a judge in Chicago and
achieved considerable fame when he presided over the infamous trial
of the Chicago White Sox baseball team, which was accused of
throwing the 1919 World Series. Three days after the long jump, in
the hop, step and jump competition (the precursor to the modern
triple jump), Peter O’Connor took gold, just ahead of another
Irishman, Con Leahy, and bronze was taken by an Irish-American,
Thomas Curran, who later qualified as a lawyer.
When Peter O’Connor’s long-jump world record was finally broken
in 1920, after almost two decades, an American commentator noted
that ‘Ireland, the land of the jumpers, has surrendered its last great
record, one that the Celts were justly proud of’. The celebrated
remanded in custody in Waterford jail despite the
fact that there was no hard evidence. When the
case was eventually dismissed for lack of evidence
and the absence of a body, O’Connor successfully
pursued libel cases against the Waterford News and
Cork Examiner on behalf of five of the acquitted
defendants. To this day, Laurence Griffin’s
disappearance has never been accounted for.
After his son Peter Jr qualified in 1928, he
worked alongside his father. The 1930s were
difficult times for the practice, as many of
Harvard athlete Edward ‘Ned’ Gourdin was the first person to cross
the magical barrier of 25 feet and became the first African-American
athlete to take a world record in a field event, ushering in a new era
in international athletics. Yet Gourdin’s jump of 25 feet, 3 inches,
also ended the unusual monopoly that lawyers had held over the longjump world record in the previous 50 years.
The first and most famous legal professional credited with a longjump world record was the Englishman Lord Alverstone in the 1870s.
Between 1887 and 1889, Lord Alverstone acted as barrister for The
Times of London following allegations in the paper that Charles
Stewart Parnell had supported the subversive IRB faction known as
the Invincibles, who assassinated the Irish chief secretary, Lord
Cavendish, and his assistant TH Burke in the Phoenix Park in Dublin
in 1882. A commission was set up to investigate the claim, but the
letters were eventually proved to be forgeries and The Times’s case
collapsed, while Parnell was cleared to great acclaim. Lord Alverstone
later became lord chief justice of England.
In 1883, solicitor Pat Davin, brother of Maurice, the first president
of the GAA, set his own record of 23 feet, 2 inches, from a grass
take-off at Monasterevin. This record lasted 15 years. The next legal
mind to stake his claim to the long-jump world record was Myer
Prinstein, O’Connor’s great Olympic rival, who jumped 24 feet, 71/4
inches in America in 1900. Prinstein’s mark stood for less than two
years, until Peter O’Connor established his world record
of 24 feet, 113/4 inches at Ballsbridge in 1901,
which stood for 19 years.
Peter O’Connor with the
Law Society Council in
December 1933
O’Connor’s
clients –
farmers and
shopkeepers –
were pushed to
the brink of
bankruptcy during
the economic war
with England.
During these hard
years, Peter Jr became
his father’s natural
successor to the practice,
although another son,
Jimmie, also qualified as a solicitor in 1937 and
established his own practice in Thurles. O’Connor
kept an active interest in the running of the office
right up to his death in 1957 at the age of 85, when
Peter Jr’s succession ensured that the practice, his
life’s work and pride and joy, would remain a
landmark on the Waterford legal scene.
The offices of Peter O’Connor & Son remained
in the family until the unexpected death of Peter Jr
in 1981. Following his death, the office passed out
of family hands, although the practice continues
today as Peter O’Connor & Son. G
The king of spring: the life and times of Peter
O’Connor, by Mark Quinn (€17.95, ISBN: 1904148-52-2), is available from The Liffey Press,
Ashbrook House, 10 Main Street, Raheny, Dublin 5, tel:
01 851 1458, e-mail: [email protected].
Law Society Gazette
June 2004
25
CPD
NITA faculty, tutors, co-ordinators, witnesses and participants from the USA, Ireland, Northern Ireland and Scotland pictured at the recent Further
advanced advocacy for solicitors course in the Burrendale Hotel, Newcastle, Co Down
TALK
yourself UP
Now in its third year, demand for the advanced advocacy programme continues to grow.
In response, a new course is scheduled for November, says Lindsay Bond
uch has happened since Dundalk
solicitor and Council member James
MacGuill attended an advanced
advocacy course in Belfast in 2001.
Recognising the importance of such
a course, he approached the Law Society’s continuing
professional development (CPD) team with the idea
of running an identical course here. With the
support of the society’s director of education TP
Kennedy and James MacGuill, I duly adopted the
programme developed by the Northern Ireland
Advocacy Working Party in conjunction with the
US-based National Institute for Trial Advocacy
(NITA) and launched the course in 2002.
This annual advanced advocacy for solicitors course
is now in its third year, and places on the course
continue to be in extremely high demand. I owe a
huge debt of gratitude to Professor Lonny Rose,
executive director of NITA, and the Northern Ireland
Advocacy Working party, in particular Tony Caher
and Fiona Donnelly. Without them, the course would
never have happened.
Last year, following many requests north and south
for more advocacy training in the same vein, the two
law societies jointly organised a further advanced
advocacy course. This took place over a weekend in
the Slieve Russell Hotel, Cavan, and was only open to
past participants of the advanced advocacy
programme. In March, we ran a similar event in the
Burrendale Hotel, Newcastle, County Down, but this
time we had three jurisdictions represented, with nine
participants from the Scottish Society of Solicitor
Advocates.
Together with the local tutors, Professor Lonny
Rose, former judge Jeanne Jourdan and Mike Roake,
one of San Diego’s foremost criminal lawyers, put the
advocates through their paces, concentrating on the
M
Lindsay Bond is the Law Society’s CPD executive.
Law Society Gazette
June 2004
A participant conducting
examination and crossexamination of a witness
in a role-play scenario
MAIN POINTS
essential elements of advocacy as they ran a complex
commercial case. NITA has now identified this event
as one of their most prestigious foreign programmes.
The weekend concluded with an international
conference on advocacy, which discussed strategies for
pooling resources to ensure a proactive approach to
progressing solicitors’ advocacy skills.
In response to many requests for more advocacy
courses, a new course, entitled Essential advocacy for
solicitors, has been scheduled to take place in
November. It will be a residential weekend course
beginning on Thursday 11 November and concluding
Sunday 14 November. NITA tutors will lead the
course, supported by a panel of local tutors who are
trained in the NITA methodology. The course is open
to all solicitors and demand for places is expected to
be extremely high. Places will be allocated on a firstcome, first-served basis on receipt of completed
application forms with payment.
Further details about this course and an
application form are available in this month’s CPD
brochure and in the CPD section of our website at
www.lawsociety.ie. G
• Continuing
professional
development
• Advanced
advocacy for
solicitors
• New
advocacy
course soon
27
Employment law
Riding the
MAIN POINTS
If you’re not in, can you still win anyway? Currently, nonunion employees can benefit from collective agreements
negotiated by trade unions, without paying a penny in
subs. Anthony Fay looks at the concept of ‘bargaining
fees’ in other jurisdictions and considers what is likely
to happen in this controversial area here
• Non-union
employees
• Bargaining
service fees
• Registered
employment
agreements
he last few months have been turbulent
for industrial relations and social
dialogue in Ireland, with several
contentious issues hitting the headlines.
These include SIPTU members taking
industrial action over the proposed break-up of Aer
Rianta and the Prison Officers’ Association at
loggerheads with the Department of Justice over
overtime entitlements.
One controversial issue that exists in other
jurisdictions – and which might well make its way
here – is whether trade unions are entitled to seek
reimbursement from non-union employees who
avail of benefits under union-negotiated
agreements. This phenomenon is known as ‘free
loading’ and has been recognised in the USA,
Canada and Australia. This article explores the
issue from a legal perspective and points out the
practical implications it could have for social
partnership and other forms of collective
agreements in Ireland.
T
Bargain hunt
In Australia, trade unions – including the Australian
Council of Trade Unions (ACTU) – have attempted
to impose on non-union employees a ‘bargaining
fee’ for the costs of these negotiated agreements.
The ACTU has recently claimed that the argument
is particularly strong, given that the Workplace
Relations Act 1996 (the principal act currently
governing industrial relations in Australia) prohibits
the exclusion of non-members from union
negotiated agreements.
28
Law Society Gazette
June 2004
The rationale behind this is that a union,
employer or another party is not entitled to
interfere with an employee’s freedom of association
or the converse right to dissociate. This is similar
to the principles expounded in Educational Company
of Ireland Ltd and Ors v Fitzpatrick and Ors ([1961]
IR 323) and Meskell v CIE ([1973] 121), which
recognised the unenumerated right of dissociation
that arises in particular under article 40(6) of the
constitution.
Traditionally, Australia operated under a system
Employment law
coat tails
and conditions of many Australians’ employment
contracts are either governed by the whole of a
certified agreement, or in part as supplemented by
the terms within the relevant industry award.
of awards that were industry-specific legal
documents setting out an employee’s minimum
rights and entitlements within that industry,
dependent on such things as length of service.
The Workplace Relations Act 1996 provided for the
establishment of ‘certified agreements’ that are
negotiated between an employer and employee(s),
with or without the assistance of a trade union.
These draft workplace agreements have to be
approved by the Australian Industrial Relations
Commission (AIRC). The result is that the terms
Turbulence: Aer Lingus
cabin crew on strike at
Dublin Airport last
October
Compulsory fees
Since the introduction of the Workplace Relations
Act 1996, Australian trade unions have sought to
incorporate a bargaining service fee clause within
these certified agreements. Section 170 of the act
provides that for an application to be made before
the AIRC for a workplace certification, there must
be a written agreement about matters pertaining to
the relationship between an employer and an
employee.
In Automotive, Food, Metals, Engineering,
Printing & Kindred Industries Union v Electrolux
Home Products Pty Limited ([2002] FCAFC 199),
the Federal Court of Australia held that a
bargaining fee clause may be incorporated on the
basis that it ‘might give rise to a matter pertaining to
the relationship between Electrolux (an employer) and
those employees, notwithstanding that the relevant
union, and its members, will benefit from the
imposition’.
The ACTU welcomed the judgment, which it
believed accepted the validity and enforceability of
a bargaining fee clause in principle. However, in
response, the federal government enacted the
Workplace Relations Amendment (Prohibition of
Compulsory Union Fees) Act 2003. The key
provisions of this act include a prohibition on
conduct designed to compel people to pay
bargaining service fees and a prohibition on the
inclusion of bargaining fee clauses in certified
agreements. The act most likely represents the
political views of the Liberal Party-led coalition
government as opposed to the union-supported
Labor Party.
Bargaining fees in Ireland?
There does not appear to be similar Irish or EU
legislation that specifically prohibits or prevents
trade unions from making bargaining services
Law Society Gazette
June 2004
29
A wine-producing cooperative
has delivered ten thousand bottles
to a wine merchant in another
Member State. Despite several
reminders the invoice has still
not been paid. Which court has
jurisdiction to settle this dispute?
Which law will apply ? How can
the judgment be enforced ?
This raises several
questions of civil law...
European rules exist. Did you know ?
www.eurocivil.info
European Commission
Directorate-General for
Justice and Home Affairs
Employment law
available to non-union employees and charging a
fee. A bargaining fee clause for non-union
employees would probably be of limited relevance
in the context of the Irish model of free and
voluntary collective bargaining at a national level.
Collective agreements are generally not intended to
be enforceable unless there is evidence to create
legal relations between the parties (see Kenny & Ors
v An Post [1988 IR 285]).
However, the Industrial Relations (Amendment)
Act, 2001 allows the Labour Court, under certain
circumstances, to make a binding determination in
respect of pay and conditions of employment where
no collective bargaining arrangements are in place
between the employer and employees. The
inclusion of a bargaining fee would fundamentally
alter the voluntary approach and prove difficult to
enforce at a national level.
Registered employment agreements
There may, however, be some latitude under the
provisions of part III of the Industrial Relations Act,
1946 to incorporate a bargaining fee clause within a
registered employment agreement (REA) as ratified
by the Labour Court. REAs and employment
regulation orders are workplace agreements that set
out minimum remuneration rates and other
employment conditions for a number of Irish
industries and sectors.
The contents of an REA are comparable to the
terms of an Australian certified agreement in that
they are industry-specific legal documents. For
example, the Construction industry wages and
conditions of employment agreement contains
provisions dealing with guaranteed working weeks,
protective clothing, early starts and building site
conditions.
The procedure for the registration of an
agreement is set out in section 27 of the act. The
effect of registration under section 27(3) is to make
the provisions of an REA binding not only on the
negotiating parties (trade union and employers), but
also on parties not involved in the negotiation who
are in categories covered by the agreement.
A trade union seeking to recover a fee from an
existing non-union employee could be differentiated
from the Meskell case, as there is no compulsion on
the employee to associate/dissociate with a trade
union. The bargaining fee clause, however, would
have to be drafted taking into account the
provisions of the Payment of Wages Act, 1991. In
particular, section 5 of that act says that an
employer shall not make a deduction from the
wages of an employee unless the deduction is
authorised by virtue of any statute or any
instrument made under statute, the deduction is
authorised under the employee’s contract of
employment or the employee has given his prior
written consent. The Labour Court would need to
decide whether the deduction was authorised under
the statute (part III of the Industrial Relations Act,
1946).
‘A trade
union
seeking the
inclusion of
a bargaining
fee clause
within an
REA ought
to have
realistic
expectations
in relation
to an
application
before the
Labour
Court’
The following clause could be drafted, based
upon the standard clauses adopted by the US
Federal Court of Appeals and Australian trade
unions:
‘No employee shall be required to become or remain a
member of a trade union as a condition of employment.
Each union member shall have the right to freely retain
or discontinue his membership. The employer shall
advise all non-union employees that a negotiating fee of
X euro per month is payable to the union in
consideration for its efforts in negotiating the agreement
Y, and will facilitate individual employee authorisation
for deduction of the fee from his or her wages. The
employer agrees to deduct this fee from the wages of all
employees on a monthly basis and forward it to the
union’.
In relation to new employees, a bargaining fee
clause could be incorporated into the contract of
employment prior to the offer of employment
being made to the prospective employee to ensure
compliance with the 1991 act.
According to recent reports from the Labour
Court and the Department of Enterprise, Trade and
Employment, there were 44 REAs covering 80,000
workers at the end of 2000. Although REAs are of
relatively minor importance in the current climate of
social partnership, their prominence may increase in
the event that there is no successor to the current
Sustaining progress agreement, which expires in 2005.
Realistic expectations
A trade union seeking the inclusion of a bargaining
fee clause within an REA ought to have realistic
expectations in relation to an application before the
Labour Court. The union would need to take into
consideration the criteria to be met, in particular the
possibility that the imposition of bargaining fees
might be knocked back or curtailed to affect only
new employees.
In essence, what is required of the Labour Court
is to reformulate the traditional legal definition of
the employer and employee relationship, which was
based primarily on contract law. Part III of the
Industrial Relations Act, 1946 may provide sufficient
scope for this interpretation.
Practitioners should also note that a bargaining
fee clause is not confined to an REA and could
possibly be used as a viable alternative where an
employer no longer wished to operate a closed
shop with a union or where a prospective employee
did not wish to join the union (see also Sigurjonsson
v Iceland [1993] 16 EHRR 4262, regarding the
right of association under the European convention
on human rights). In addition, a clause could be
used by non-union employees who wish to enter
into a separate agreement with a trade union to act
on their behalf, for example, in relation to
negotiations concerning an individual’s
employment contract. G
Anthony Fay is an employment law solicitor with the
Sydney-based law firm Morrisseys Lawyers.
Law Society Gazette
June 2004
31
Pensions
MAIN POINTS
Despite equality legislation, inequalities in the workplace
and at home mean that women are much less likely to be
covered by a pension plan. Consequently, they should
prepare for retirement early, advises Olive Donovan
• Gender-specific
challenges
• Pension
provisions
• Part-time work
and career
breaks
lanning for retirement is an absolute
necessity for women today. According to
a national survey carried out on pension
provision in Ireland, just over 44% of the
female workforce have a personal
occupational pension, compared with 55% of men.
Certainly, both sexes should look to their financial
futures, but gender-specific challenges facing women
mean that making the most of savings and building
an individual pension plan must be carefully
considered elements in any long-term financial
strategy.
Some of these challenges include working within
lower salary scales and having to take time out of the
workforce due to family commitments, such as caregiving or parenting. Additional issues include the
greater likelihood of women living alone on a single
income and the fact that women live longer and will
need more to live on.
P
Live long and prosper
Married women often mistakenly subscribe to the
belief that their husbands’ pensions will support
them in old age. Unfortunately, most women will
spend a good portion of their retirement years
having outlived their spouses. These extra years can
be difficult to budget for as pensions can be
dramatically reduced should the pension-holder die
before his wife. However, steps can be taken to
lessen the financial strain:
• Proper beneficiary designations, where applicable,
will allow for tax-free transfer of pension
investments
• Purchase of life assurance on the male partner can
provide additional capital, which can be invested
to make up any shortfall in remaining retirement
savings
THE TWILI
32
Law Society Gazette
June 2004
Pensions
• Life assurance can
cover income tax
liabilities that may be
payable by the estate
on capital gains on
the death of a second
spouse.
Social welfare issues
The state provides certain
social welfare pensions,
such as the old-age
contributory pension or
the widow’s contribution
pension. It also provides
a way in which you can
protect your entitlements
for when you are not in
paid employment, through,
for example, the
homemakers’ scheme. But
the social welfare pension in
Ireland amounts to about
30% of average industrial
earnings. Its primary purpose
is to provide the bare
minimum of protection.
In addition to state social
welfare benefits, it is
important to participate in
schemes sponsored by
employers and to set up
personal pensions.
Private pension provision
Private pensions can provide
an important source of
income to women. However,
coverage is 15% less for
female employees than it is for
their male counterparts.
Looking only at the private
sector, these figures are even
lower, with 31% coverage for
women.
There are three primary benefits to contributing
to a good private pension:
• Full tax relief on contributions paid
• Tax-exempt investment returns on monies
invested
• Money is ‘put away’ – removing the temptation to
dip into future income.
Other pension issues that particularly affect women
include maternity leave, part-time work and
separation or divorce.
Maternity leave
Under the Maternity Protection Act, 1994 women are
entitled to statutory minimum maternity leave of 18
weeks. Some schemes may provide more than the
statutory minimum (in cases of maternity, adoptive
and parental leave) and women can obtain details
from the trustees or pension scheme administrator.
Membership of the pension scheme must
continue while on statutory maternity leave. In other
words, a member of a defined benefit scheme will
continue to accrue pensionable service during
statutory maternity leave. Holders of personal
pensions may be able to continue contributions,
provided total contributions for the tax year are
within the limits permitted by the Revenue
Commissioners.
PRSI credits will be given while in receipt of the
state maternity benefit, so entitlement to retirement
benefits from the state will not be reduced in respect
of the period of statutory maternity leave.
The entitlements with regard to pensions and
adoptive leave are very similar to those with regard
to maternity leave.
Part-time work and career breaks
In the past, part-time workers were often denied
access to company pension schemes. However, the
EU directive requires that part-time and full-time
employees must be treated as equals. So, if an
employer provides access to a pension scheme, it
must be open to part-time workers (unless exclusion
can be justified on objective grounds).
Members of occupational pension schemes should
GHT ZONE
Law Society Gazette
June 2004
33
LAW SOCIETY
COMPANY FORMATION SERVICE
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companies every year for over 300 solicitors’ firms.
We achieved ISO 9001:2000 NSAI in 2002.
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Pensions
seek clarification from employers as to how
membership is affected by a career break. For
example, some schemes treat this as conclusion of
service, while others treat the period of service before
and after the career break as continuous. Normally,
retirement benefits would not be accrued while on a
career break. Since this is typically the case, it is
always wise to continue saving for retirement through
contributions to a personal pension plan.
Separation and divorce
Due to changing family and career patterns there is a
growing need for personal financial responsibility.
Increases in single parenthood and marriage
breakdowns are just two reasons highlighting the
need for individual rights. Ironically, despite rising
divorce rates and separation, almost a quarter of
women assume their partner will provide for them in
later life.
For those getting divorced or judicially separated,
both parties’ pension entitlements must be taken into
account when arriving at a financial settlement. In the
event of marital breakdown, there are various options
based on earmarking part of the spouse’s pension or a
‘clean break’ option. Advice should be taken on these.
Under spouses’ pension plans, women and/or their
children may be entitled to benefits. Beneficiaries are
entitled to information from the plan administrator or
trustee.
Planning and saving for retirement may seem like a
distant aspiration, yet saving for retirement should
start early and continue for life. It is clear from the
following challenges that there are specific reasons
why saving matters:
• Women tend to earn less than men and work for
fewer years
• Women tend to change jobs or work part-time
more often, interrupting their career to raise
children. Benefits received from companysponsored pension plans may be affected
• On average, women live six years longer than men,
and need a higher amount for retirement
• Studies indicate that women tend to invest less
aggressively than men
• Women tend to lose more income than men
following divorce
• Annuity rates are smaller for women than men of
the same age, who have contributed to the same
level, because average life expectancy is longer.
‘Inequities
in the
workplace
and in
family roles
mean that
women
continue to
be less
likely to be
covered by
pension
plans’
Although the pension laws are gender-neutral,
inequities in the workplace and in family roles mean
that women continue to be less likely to be covered
by pension plans and to receive benefits. Allowing
these inequities to persist through lack of knowledge
could result in a dark retirement profile for future
generations. G
Olive Donovan is a business development manager at
Bank of Ireland Private Banking.
WHERE THERE’S A WILL
THIS IS THE WAY…
When a client makes a will in favour of the Society, it would
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Stenographers
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be appreciated if the bequest were stated in the following words:
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Cancer Society Limited to be applied by it for any of its
charitable objects, as it, at its absolute discretion, may decide.”
Experts in
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Law Society Gazette
June 2004
or
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Telephone: (01) 873 2378
35
Biotechnology law
Funding for stem-cell research
continues to be a divisive issue
between EU member states. Niamh
Pollak outlines the ethical debate
and legal uncertainty around this
controversial area of biotechnology
n 3 December 2003, the European
Council of Ministers failed to agree on
whether EU central budgets could be
used to fund research on the stem cells
of human embryos. Such research is
thought to provide the possibility of cures for
diseases such as Alzheimer’s and Parkinson’s. The
previous month, the European Parliament had voted
in favour of using the EU’s €17.5 billion sixth
framework programme research budget for stem-cell
research.
Ireland took over the union’s rotating presidency
from Italy at the start of this year, and the
government is refusing to pursue the issue. Italy
had failed to overcome disagreements between EU
member states that, on ethical grounds, oppose the
use of human embryos for medical research.
Opponents include Germany, Austria, Italy and
Portugal, whereas Sweden, Finland, Greece, the
Netherlands and Britain allow the harvesting of
stem cells from ‘supernumeracy embryos’, or those
that are left over from in vitro fertilisation, under
certain conditions.
This makes Britain the only EU member that
allows the actual creation of human embryos for
O
CELLDIV
WHAT ARE STEM CELLS?
Stem cells are primitive cells that have not yet developed their final
function. They occur at all stages of human development, from early
embryos to foetuses to adults. They are valuable because they can
develop into other types of cells under certain conditions. For instance, the
cells could someday replace a failing liver or grow a new one. Scientists
say these cells may be able to treat and cure degenerative diseases and
may be able to replace damaged or sick cells in a patient with an injury.
But controversy surrounds the issue as to whether embryonic or adult
36
stem cells should be used for this purpose, and it is this dilemma that is
stalling further research.
Embryonic stem cells, when isolated and cultured by scientists, have
the ability to reproduce themselves and mature into various specialised
types of cells that could provide a ready supply of replacement tissue – for
example, nerve tissue, blood, heart muscle and even brain cells.
Scientists also hope to find a method to persuade stem cells to grow into
complete organs.
Law Society Gazette
June 2004
Biotechnology law
PIC: BURGER/PHANIE/REX FEATURES
legal position on the area of research unclear.
Instead of weighing up cases through precedents,
the commission will now have to proceed on a
case-by-case basis, causing legal headaches and
uncertainty. Scientists say such limitations only
hinder the potential of invaluable research.
stem-cell research. The EU research commissioner,
Phillipe Busquin, has condemned the failure of
member states to reach a consensus, as there is a
fear that Europe will fall behind other jurisdictions
in the potentially lucrative area of biotechnological
development. Asian regions – Singapore and China
in particular – continue to forge ahead with
research, although neither country has set down
any legal or ethical guidelines.
The EU’s failure to reach agreement has left the
MAIN POINTS
ISION
• Embryonic
stem-cell
research
• EU funding
• Ethical and
legal
concerns
Law Society Gazette
June 2004
Scientific curiosity
The controversy doesn’t relate to the potential of
the research; rather, it focuses on the ethics of
using embryonic cells. Embryonic stem cells are
taken from a developing embryo at blastocyst
stage, causing destruction of the embryo. Most
research up to now has been conducted on
unwanted embryos from IVF treatment and from
aborted foetuses, usually with the consent of those
donating the embryos. But opponents fear the
specific creation of embryos for the purposes of
research, claiming that this would be tantamount
to the destruction of human life in order to
advance scientific curiosity.
Stem-cell opponents are less vocal about the use
of adult stem cells because they are taken from the
blood or organs of healthy adults. These, however,
do not seem to have the flexibility of embryonic
stem cells. Adult bone-marrow cells can become
liver cells, but embryonic stem cells are necessary
to produce the full range of body cell types and, as
adult stem cells do not replicate as quickly as their
younger counterparts, they are not currently as
useful to scientists.
Embryonic stem-cell advocates include some
who might indeed benefit from such experiments.
Celebrities such as Christopher Reeve (paralysed
following a horse-riding accident) and Michael J
Fox (who suffers from Parkinson’s Disease) have
lobbied in favour of embryonic stem-cell research
with a view to ‘therapeutic cloning’ (see panel,
page 39) that could help to cure their illnesses.
Ethical solution?
Following the 3 December deadlock, no project
involving the derivation of new stem-cell lines
from human supernumeracy embryos will be
funded from any EU research budget. This will
not prevent individual member states, such as the
UK, from continuing with such research, provided
it is permitted under national legislation. Scientists
there have recently developed a technique to
create, from a patient’s own blood, stem cells that
are purported to match the flexibility of embryonic
stem cells. This patented ‘TriStem’ technique
claims to provide an ethical solution to the
exploitation of embryonic stem cells, but further
clinical trials are required. The United States
currently allows government funding for research
on embryos that were stored before the year 2001,
but President Bush is now trying to revive a UN
37
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Biotechnology law
ATTACK OF THE CLONES
‘Therapeutic cloning’ does not involve the creation of human beings and
is better described as somatic cell nuclear transfer; that is, the
transplantation of a patient’s DNA into an unfertilised egg in order to
grow stem cells that could cure devastating diseases.
The aim is to treat patients by creating tailor-made genetically
identical cells that their bodies would not reject, as they are effectively
treated using their own DNA. Scientists also hope the technique could
allow for the development of stem cells that cannot be destroyed by the
body’s immune system. This holds promise for the sufferers of diabetes
treaty that would provide a long-term ban on
human embryonic research worldwide.
and heart disease.
However, therapeutic cloning requires the actual creation of new
embryonic stem cells, and the EU Commission research proposal
recommends only the use of supernumeracy embryos that were donated
for research by parents and would otherwise be destroyed and were
created before 27 June 2002, the date of the adoption of the EU sixth
research framework programme.
Without legal certainty, this leaves advocates facing the same cloudy
dilemma.
and for scientists based in Europe who argue that
the techniques might be developed in other
countries without any ethical guidelines or
regulation, with nothing to prevent maverick
scientists from experimenting with reproductive
cloning. Opponents believe that such research is
unethical, imperfect and (probably) immoral. The
success rate of therapeutic cloning in the animal
model is telling: Dolly the sheep was the only
survivor among 29 embryos after an incredible
227 cloning attempts by scientists. Therefore,
although the technology clearly exists, it is far
from being perfected in animals, let alone
humans.
The Netherlands favours central funding for
stem-cell research and assumes the presidency of
the EU for the latter part of 2004. It may opt to
pursue the agenda during its term. Who knows?
Until then, the controversial debate and legal
uncertainty surrounding the issue continues. G
Nerve cells derived from
mouse embryonic stem
cells
Continuing uncertainty
The 3 December vote is particularly disappointing
for patients who believe that life-saving medical
breakthroughs are being put on hold indefinitely
Niamh Pollak is a solicitor at the Dublin law firm
McCann FitzGerald.
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June 2004
39
Gadgets
Tech trends
Are you ready for your close up?
okia continues to expand
the horizons of its mobile
phones with the imminent
launch of its new model 7610.
This new phone is really all
about the digital imaging
system – that’s a camera to you
and me. The 7610 takes
pictures at a not
inconsiderable one
megapixel. This is still
N
smaller than the standard 1.3
megs that you would need for a
professional quality print, but
for a camera phone it’s an
impressive file size. Needless to
say, the 7610 has all the features
that you would expect from a
Nokia camera phone, such as 4x
zoom, standard and night
modes, colour display,
Bluetooth wireless technology
and USB connectivity. It also
has an integrated videorecorder, which seems to be the
next big thing in mobile
technology, allowing you to
film ten-minute video clips.
The Nokia 7610 will not be
available until the summer and
no price has yet been decided.
For more information, visit
www.nokia.com.
Animal magic and a very tenuous link
he battle of Farthing Wood
was one of the turning
points in the Duke of
Wellington’s Peninsular
Campaign. Badgered by a
superior force and out-foxed by
a flurry of woodland creatures,
the Duke was hard-pressed on
both flanks, and indeed round
the back. He might have lost his
way in the woods completely
had not a mole in the enemy
ranks faxed him through a map
T
of his position. It’s equally
probable that the mole was
using the HL 2700CN entrylevel colour laser printer from
Brother. This new machine
claims to print 31 pages per
minute in black and white and
eight pages per minute in
colour. The printer comes
network ready and has an ample
64MB memory, which can be
expanded to 576MB if your
printing needs are particularly
complex. A handy function
allows you to reprint the last
document handled without
having to return to your PC.
The new model is compatible
Too much monkey business
f you’re thinking of training
up an office monkey to do
odd jobs around your firm, you
may want to equip it with the
new IBM ThinkPad X40. Sure,
it’s IBM’s thinnest and lightest
ultraportable notebook
computer ever, weighing only
2.7 pounds and measuring
around 0.8 of an inch thick.
And yes, it’s powered by an
Intel Pentium M processor and
can be upgraded to 1536Mb of
DDR memory. Any selfrespecting ape would expect
nothing less. But what really
makes this notebook genuinely
monkey-friendly is its use of
I
40
airbag technology to protect
the machine’s hard drive. An
integrated motion sensor
detects sudden changes in
motion and parks the hard
drive when a fall is detected.
Now all you have to worry
about is designing a smart little
suit for your chimp to wear.
With a bow tie. They like
bow ties.
The IBM ThinkPad
X40 costs around
€1,990 plus VAT
and is available
from computer
outlets
nationwide.
Law Society Gazette
June 2004
with Windows and Mac
programs and is refreshingly
easy to use. But perhaps its
strongest selling point is its
price of around €855 plus VAT.
If a mole with its wee stumpy
hands can use one, so can you.
Available from computer outlets
and office suppliers nationwide. For
more information, call Brother on
tel: 01 241 1911 or visit
www.brother.ie.
Gadgets
In need of assistance
know you’re probably sick of
hearing about PDAs (personal
digital assistants), especially if
you don’t have one, but you
can’t keep on ignoring them –
especially when they come as
good as the new XDAII from
O2. This is a combined mobile
messaging device and phone,
which allows you to access your
e-mail, the internet and your
contacts database. You can also
I
plug it into a projector to make
a PowerPoint presentation, a
rather nifty little function if
presentations are your business.
The XDAII comes equipped
with Word, Excel, Outlook,
Explorer and Media Player.
Weighing in at a mere 190
grams, it boasts a colour screen,
28Mb of SDRAM and runs on
an impressive-sounding Intel
Xscale PXA 263 400MHz chip.
That was the science bit.
The fun bit is that it
includes a camera (of course
it does), an MP3 media player,
a speakerphone and a voicerecorder facility. Sure what
more could you want from a
handy little gadget like this?
The XDAII costs €469 and is
available from mobile phone
outlets. For more information, visit
www.o2.ie.
Sites to see
Big brother really is watching you (www.cia.gov/cia/
publications/factbook). If you’ve ever fancied engaging in a bit of
spookery behind enemy lines, then knowing a bit about the locals
is undoubtedly useful. The CIA factbook provides political,
economic, military and demographic information on all the
world’s countries, so you can remind yourself that Ireland’s main
ethnic groups are ‘Celtic’ and ‘English’, apparently. Great for pub
quizzes or swotting up before a meeting abroad.
Cartographers anonymous (www.lib.utexas.edu/maps). Everyone
loves maps, don’t they? Well, any among you that do can top up
on your cartographic fix at the University of Texas library site.
Here, there are dozens of contemporary and historical maps, so
you can satisfy that burning curiosity to find all the US national
parks or see the state of Europe in 1400. The library site also has
academic journals available on-line, so you can always justify your
trip if the boss comes into your office.
While away your billing hours (www.mousebreaker.com).
If, after browsing the CIA website, your spy fantasies demand
that you act out some spook-related activity, why not be a sniper
for ten minutes? A sniping game, Camperstrike, and Heli Attack,
where your character is repeatedly attacked by, er, helicopters,
are just two of the dozens of Flash games hosted on this site.
And after you’ve made the world safe for democracy, relax with
a game of billiards.
Sartorially simian (www.sewsimplymonkey.com). Now that you’ve
designed a business suit for your office chimp, you have to think
about what the poor ape will wear on your firm’s ‘dress-down
Friday’. Luckily, help is at hand from the owners of this site,
who tailor a range of bespoke casual clothes for our little
monkey mates. ‘Our fashions are designed for the comfort,
physical protection and sanitation of the monkey’, they say,
‘besides which, they are just darn cute-looking’.
Law Society Gazette
June 2004
41
Briefing
Report of Law Society Council
meeting held on 19 March 2004
Motion: Professional
indemnity insurance
regulations
‘That this Council approves the
draft regulations cited as the
Solicitors Acts, 1954 - 2002 (professional indemnity insurance)
(amendment) regulations, 2003.’
Proposed: James MacGuill
Seconded: Michael Irvine
James MacGuill outlined the
contents of the draft regulations
In briefing
this
month...
■ Council report
page 42
■ Committee
report
page 43
■ Practice notes
page 44
• Section 23-type
properties
• Certificate of title
system and land
registry form 17
■ Legislation
update
page 45
■ Solicitors
Disciplinary
Tribunal
page 46
■ Personal injury
judgment
page 47
■
•
•
•
•
•
FirstLaw update
Arbitration
Criminal
Contract
Damages
Tort
page 48
■ Eurlegal
page 51
• A new era in European
merger control
• Recent developments in
European law
42
and confirmed that they had been
circulated to all of the local bar
associations for their comments.
Mr MacGuill explained that the
principal amendments were an
increase in the self-insured excess
from €6,500 to €10,000 and a
new provision enabling a qualified insurer to notify the Law
Society where a solicitor failed to
co-operate in relation to the handling of a claim. The Council
unanimously approved the draft
regulations.
The solicitors’ profession and
competition issues
The director general briefed the
Council in relation to a number
of developments in the competition area in recent weeks. He outlined the contents of a report on
competition in the professions,
which had been issued by the EU
Commission. The report indicated that:
‘The five main categories of
potentially restrictive regulation in
the EU professions are: (i) price fixing, (ii) recommended prices, (iii)
advertising regulations, (iv) entry
requirements and reserved rights,
and (v) regulations governing business structure and multi-disciplinary
practices.
‘On the one hand, a significant
body of empirical research shows the
negative effects that excessive or outdated restrictive regulations may
have for consumers. Such regulations
may eliminate or limit competition
between service providers and thus
reduce the incentives for professionals
to work cost-efficiently, to lower
prices, to increase quality or to offer
innovative services.
‘On the other hand, there are
essentially three reasons why some
regulation of professional services can
be necessary: asymmetry of information between customers and service
providers, as a defining feature of
professional services is that they
require practitioners to display a
high level of technical knowledge
which consumers may not have;
externalities, as these services might
have an impact on third parties; and
certain professional services are
deemed to produce “public goods”
that are of value for society in
general.’
The report indicated that
Ireland was regarded as one of
the countries with the least
amount of regulation within the
EU member states.
In relation to the UK, the
director general noted that the
Clementi consultation paper in
relation to the legal profession
had been published earlier in the
month. He outlined its principal
features, but noted that the market for legal services in England
and Wales was markedly different
from Ireland, as was the size and
nature of the legal profession in
that jurisdiction.
In relation to the current
Competition Authority study of
the Irish legal profession, the
director general said that the
society was satisfied that it had a
good story to tell in relation to
each of the areas identified for
discussion by the authority, particularly in relation to its regulatory function, and was supported
in this view by the statement
from the authority’s consultants,
Indecon, that:
‘We have examined the complaints, discipline and enforcement
procedures in detail and have found
no evidence that they are in any way
used to institute any anti-competitive
practices or damage consumer interests. It appears to us that the enforcement procedures are logically structured, fair and open. Indeed, we
believe that they are appropriately
designed to protect consumer interests
and to maintain high standards in
the profession.’
Personal Injuries
Assessment Board
Ward McEllin reported that the
PIAB had recruited a chief
Law Society Gazette
June 2004
executive officer, was seeking to
recruit 85 members of staff and
had secured offices in Tallaght.
It now appeared that the board
would be operational from 1
June for employers’ liability
cases. It appeared that the PIAB
would involve a two-pronged
process. Firstly, claimants
would make contact with a service centre to obtain forms and
copies of the rules for completion. Once completed, the
forms would be submitted to
the PIAB. No rules governing
the completion of forms or the
assessment process had been
produced as of yet.
Civil Liability and Courts
Bill, 2004
Ward McEllin reported that the
society had drafted a statement of
its preliminary observations in
relation to the bill, which had
been circulated to the relevant
senators in advance of the debate
on the bill in the Seanad. The
society had adopted a position
that the reduction in the limitation period, if introduced, should
remain at three years for medical
negligence cases and should not
be reduced beyond two years for
all other cases. Most of those senators who had spoken on the bill
in the Seanad had picked up on
these points and a number of
patient representative organisations had also made representations on the issue.
Housing (Stage Payments) Bill,
2004
Patrick Dorgan outlined the contents of the Housing (Stage
Payments) Bill, 2004, which had
been introduced as an opposition
private member’s bill. The purpose of the bill was to outlaw the
practice of stage payments, which
operated to the detriment of purchasers. It was hoped that the bill
would secure the support of all
parties in the Oireachtas. G
Briefing
Committee reports
EU AND INTERNATIONAL
AFFAIRS
Changes to ECJ procedures
The committee has received a
letter from the European Court
of Justice regarding changes to
the court’s rules of procedure.
The ECJ said that the changes
had been implemented ‘to
simplify and expedite the
handling of cases brought before
it’. It added that the changes,
introduced in April, were
effective immediately. The main
points of the changes are
described in the letter as follows:
‘1a) In order to expedite the
written procedure in direct
actions and appeals, the
court has decided to restrict
extensions of time limits for
the lodging of pleadings to
a single extension of one
month
on
reasoned
request,
any
further
extension being granted
only exceptionally on duly
substantiated request.
b) The reports for the hearing
drawn up by the judgerapporteurs are to be
simplified. In references for
a preliminary ruling, the
report will simply describe
the legal and factual
background to the case and
set out the questions
referred and the answers
proposed in the written
observations submitted. As
a rule, the arguments put
forward in support of the
proposed answers will not
be produced
c) In direct actions and
appeals, the report will be
confined to a concise
description of the relevant
facts and the rules
applicable, and to setting
out the forms of order
sought by the parties and
the pleas in law raised.
Arguments put forward by
the parties in support of
their pleas in law will be
reproduced in summary
form only
d) Where, in accordance with
the provisions of the rules
of procedure, there is to be
no hearing of oral
argument in a case, a report
for the hearing will no
longer be prepared. In any
event, according to the
wording of article 20 of the
Statute of the Court of
Justice, it is necessary to
draw up such a report only
when a hearing is to take
place
e) In order to lighten the
burden of work placed on
the translation service, the
court has decided to adopt
a policy of selective
publishing of decisions in
the ECR. The public will,
however, still have access to
the text of those decisions
in electronic form in the
language(s) available. First,
in direct actions and
appeals, judgments will no
longer be published in the
ECR when given by a
chamber of three judges or
indeed by a chamber of five
judges
where,
in
accordance with the last
sub-paragraph of article 20
of the Statute of the Court of
Justice,
the
case
is
determined without an
advocate general’s opinion.
It will nevertheless still be
possible for the formation
of the court concerned to
decide that such a decision
should be published in full
or in part where the
circumstances
warrant
such a choice. As regards
references
for
a
preliminary ruling, the
position is unchanged.
2) As mentioned above, the
court also proposes very
shortly to send to the council,
for its approval, draft
amendments to the court’s
rules of procedure. The
proposed amendments are
intended in the first place to
shorten proceedings
a) It is proposed to amend
articles 44a, 104(4) and 120
of the rules of procedure
by bringing the period
allowed for the submission
of an application for a
hearing of oral arguments
down from one month to
two weeks. The period
currently prescribed has
proved, especially in
references
for
a
preliminary ruling, too
long and liable to delay
proceedings
b) It is also proposed to
amend article 104(3) of the
rules of procedure which,
in the straightforward
cases covered by that
provision, enables the
court to answer questions
referred for a preliminary
ruling by means of an
order. The provision
requires the court to notify
the national court and to
hear the parties and, in
particular, all the member
states before giving its
decision by order. It is
proposed to do away with
that requirement which, in
the court’s experience,
prolongs
proceedings
without adding any factor
of any use to the decision to
be taken
c) Finally, it is proposed to
amend article 104(1) of the
rules of procedure according to which requests for
preliminary rulings are to
be notified to the member
states in the original
version, accompanied by a
translation
into
the
language of the addressee
state. It is proposed that the
translation accompanying
the notification should be
limited to the questions
referred only. Translation
of the entire reference into
all the official languages
constitutes a significant
hindrance to proceedings.
Furthermore, there is not
the slightest need for that
translation with regard to
the procedure before the
court; it takes an undue
share
of
the
not
inconsiderable resources of
the court’s translation
service, resources which
could more advantageously
be used in tasks which
further proceedings. A
translation requested into
the working language of
the court, which is made in
any event, could be sent to
those member states which
so wish.’ G
FOR BOOKINGS CONTACT MARY BISSETT OR PADDY CAULFIELD TEL:
668 1806
Court
Meet at the Four Courts
LAW SOCIETY ROOMS
at the Four Courts
Law Society Gazette
June 2004
43
Briefing
Practice notes
SECTION 23-TYPE PROPERTIES
he Conveyancing Committee
has received a number of
queries in relation to the respective obligations of the developer
and the purchaser in section 23type properties.
It was suggested to the committee that the developers should
agree in the contract to provide all
necessary documents to evidence
the availability of tax breaks, and
that refusal to do so would be
unreasonable, as the tax breaks
are usually the principal reason
why purchasers acquire such
properties.
The committee considers that
the foregoing is too broad a statement of the position, and considers that the following represents
appropriate practice in the pur-
T
chase of such properties.
Despite curtailments in recent
budgets, the numbers of such
schemes, and the par ticular
requirements of each, make it
impossible to give more than general guidance.
1) The availability of tax breaks
may often depend on the purchaser’s own circumstances
and therefore it is unreasonable to expect a clause to be
inserted by the developer guaranteeing the availability of any,
or any particular, tax relief
2) When acting for a purchaser, a
practitioner should ascertain
the particular relief which the
purchaser hopes to achieve,
and advise them to take specialist tax advice in relation to
the availability of such relief,
and what documentation will
be required by the Revenue
Commissioners to grant such
relief
3) Where the documentation necessary to obtain the relief is
wholly within the procurement
of the developer, for example,
a certificate of building cost,
then it is reasonable that a
condition requiring the furnishing of such documentation is
inserted in the contract, specifying as appropriate any monetary amounts or a minimum figure or percentage
4) Where the obtainment of the
tax relief requires the issue of
certificates by statutory bodies,
such as local authorities or the
Department of the Environment, it is reasonable that the
developer’s solicitor insert a
condition requiring his client to
use his best endeavours to
obtain such certification and, in
such circumstances, the purchaser’s solicitor should advise
his client of the possibility that
for any reason such documentation may not be available. As
with any such advice, it should
be in writing to the client, precontract
5) A purchaser should consider
pre-contract what is to happen
if the expected relief is not
available for any reason and
should deal with the matter in
the contract.
Conveyancing Committee
CERTIFICATE OF TITLE SYSTEM AND LAND REGISTRY FORM 17
ractitioners may be aware
that the Land Registry form
17, including the electronic version currently in use, states that
the lodging solicitor is the ‘solicitor for the applicant’ for various
registrations, including registration of a charge. The lodgment of
a dealing containing a deed of
charge, including the lodging
solicitor’s application for registration of the lending institution as
P
owner of the charge, might be
open to the interpretation that the
lodging solicitor is acting in a
legal capacity for the lending institution. The agreed position
between the Law Society and the
lending institutions under the certificate of title system is that the
borrower’s solicitor acts only for
the borrower and does not act for
the lending institution. The
Conveyancing Committee sought
confirmation from the lenders that
the statement in the Land
Registry form 17 does not represent a derogation from or any
relaxation of the agreed position
of the borrower’s solicitor under
the certificate of title system.
The committee is pleased to
advise practitioners that the Irish
Mortgage Council (IMC), representing the lending institutions,
recently wrote to confirm with the
committee that it shares the Law
Society’s view that the borrower’s
solicitor is acting for the borrower
and not the lender. The IMC further confirmed that, in registering
the lender’s charge, the borrower’s solicitor is discharging part of
the undertaking under the certificate of title system but is not
specifically acting on behalf of the
lender.
Conveyancing Committee
DOYLE COURT REPORTERS LTD
VERBATIM TRANSCRIPTS
2 Arran Quay 7. Tel: 872 2833. Fax: 872 4486
Email: [email protected]
Web: doylecourtreporters.com
44
Accurate shorthand recording of the
High Court, Public and Private Inquiries,
AGM’s, Conferences etc.
Law Society Gazette
June 2004
Briefing
LEGISLATION UPDATE: 20 APRIL – 18 MAY 2004
Details of all bills, acts and statutory instruments since 1997 are
on the library catalogue at
www.lawsociety.ie (members’
area) with updated information on
the current stage a bill has
reached and the commencement
date(s) of each act.
ACTS PASSED
An Bord Bia (Amendment) Act,
2004
Number: 14/2004
Contents note: Amends and
extends An Bord Bia Act, 1994 to
provide for the dissolution of An
Bord Glas (the Horticultural
Development Board) and the transfer of its functions to An Bord Bia,
and provides for related matters
Date enacted: 5/5/2004
Commencement date: 5/5/2004
for part 1; transfer day order to be
made for part 2 (per s3(1)); commencement order(s) to be made for
parts 3 and 4 (per ss10 and 23)
Private Security Services Act, 2004
Number: 12/2004
Contents note: Provides for the
establishment of the Private
Security Authority to control and
supervise individuals and firms providing security services. The authority will operate a licensing system
for providers of security services
and a publicly-accessible register of
licence holders, issue identity
cards to licensees, set standards
for training, and establish and
administer a system of investigation and adjudication of complaints
against licensees. Also provides for
the establishment of the Private
Security Appeal Board to hear and
determine appeals against decisions of the authority. Gives effect
to the principal recommendations
contained in the report of the consultative group on the private security industry, December 1997
Date enacted: 4/5/2004
Commencement date: Commencement order(s) to be made
(per s1(2) of the act)
Tribunals of Inquiry (Evidence)
(Amendment) Act, 2004
Number: 13/2004
Contents note: Amends the
Tribunal of Inquiry (Evidence) Acts,
1921 to 2002 to enable the person who is the sole member of a
tribunal, or the chairperson if the
tribunal has more than one member, to make an order in relation to
any costs that were incurred before
his or her appointment and that
have not already been determined.
Provides that a tribunal or the chairperson of a tribunal can apply to
the High Court for directions relating to the performance of any of
the functions of the tribunal or the
chairperson, including their functions relating to costs. Provides
that a tribunal consisting of more
than one member may, whenever
the chairperson so decides, act in
separate divisions
Date enacted: 5/5/2004
Commencement date: 5/5/2004
mencement) order 2004
Number: SI 183/2004
Contents note: Appoints 1/5/
2004 as the commencement date
for the European Communities
(Amendment) Act, 2003 (incorporation into Irish law of the Athens
treaty of accession, 16/4/2003,
insofar as that treaty relates to the
European Communities)
SELECTED STATUTORY
INSTRUMENTS
Casual Trading Act, 1995
(section 2(3)) regulations 2004
Number: SI 191/2004
Contents note: Amend the Casual
Trading Act, 1995 to exempt from
its provisions the sale of certain
soft fruits and vegetables sold during the period 1 May to 30
September in any year
Commencement date: 1/5/2004
European Communities
(implementation of the rules on
competition laid down in articles
81 and 82 of the treaty)
regulations 2004
Number: SI 195/2004
Contents note: Give effect to council reg (EC) 1/2003 as amended by
council reg (EC) 411/2004 on the
implementation of the rules on
competition laid down in arts 81
and 82 of the treaty. Designate the
national authorities that will be
responsible for the implementation
in the state of the public enforcement provisions of the council regulation – the courts, the Competition Authority and the DPP
Commencement date: 1/5/2004
Competition Act, 2002
(commencement) order 2004
Number: SI 196/2004
Contents note: Appoints 1/5/
2004 as the commencement date
for s6(4)(c) of the Competition Act,
2002. Paragraph (c) of s6(4) provides that, in proceedings for an
offence under s6(1) of the
Competition Act, 2002 in which it is
alleged that an agreement, decision or concerted practice contravened the prohibition in art 81(1)
of the treaty, it shall be a good
defence to prove that the agreement, decision or concerted practice fulfilled the conditions for
exemption set out in art 81(3) of
the treaty
European Communities
(Amendment) Act, 2003 (com-
European Communities (clinical
trials on medicinal products for
human use) regulations 2004
Number: SI 190/2004
Leg-implemented: Dir 2001/20
Commencement date: 1/5/2004
European Communities (general
product safety) regulations 2004
Number: SI 199/2004
Leg-implemented: Dir 2001/95
Commencement date: 4/5/2004
European Communities (recognition of qualifications in pharmacy)
(amendment) regulations 2004
Number: SI 187/2004
Leg-implemented: Dir 85/433 to
the extent that that directive has
been amended by the 2003
Athens treaty of accession
Contents note: Give effect to the
amendments to council directive
85/433/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal
qualifications in pharmacy, including measures to facilitate the effec-
Law Society Gazette
June 2004
tive exercise of the right of establishment relating to certain activities in the field of pharmacy, contained in the treaty concerning the
accession of the Czech Republic,
the Republic of Estonia, the
Republic of Cyprus, the Republic of
Latvia, the Republic of Lithuania,
the Republic of Hungary, the
Republic of Malta, the Republic of
Poland, the Republic of Slovenia
and the Slovak Republic to the
European Union. Add the qualifications that are awarded in these
member states to the list of qualifications that are already recognised
for the purpose of registration as a
pharmacist in this country. Also set
out the procedures to be followed
in the case of applicants from
some of these member states
where the qualifications in pharmacy that are held do not comply fully
with the qualification requirements
as laid down in the directives relating to pharmacists
Commencement date: 1/5/2004
Finance Act, 2004 (section 74)
(commencement) order 2004
Number: SI 140/2004
Contents note: Appoints 1/4/
2004 as the commencement date
for section 74 of the Finance Act,
2004. Section 74(1) substitutes a
new s101 of the Stamp Duties
Consolidation Act, 1999, which
provides for an exemption from
stamp duty on the sale, transfer or
other disposition of intellectual
property as defined in that section
Food Safety Authority of Ireland
Act, 1998 (amendment of first
schedule) order 2004
Number: SI 210/2004
Contents note: Amends parts II
and III of the first schedule to the
Food Safety Authority of Ireland Act,
1998 in order to update the lists of
statutory instruments and EC regulations in force relating to food. The
full list of legislation contained in
the first schedule is set out in the
explanatory note to SI 210/2004
Garda Síochána (Police
Co-operation) Act, 2003
(commencement) order 2004
45
Briefing
Number: SI 186/2004
Contents note: Appoints 1/5/
2004 as the commencement date
for all sections of the act
Social Welfare (Miscellaneous
Provisions) Act, 2004 (section
17) (commencement) order 2004
Number: SI 184/2004
Contents note: Appoints 1/5/
2004 as the commencement
date for s17 of the act. Section
17 amends the Social Welfare
(Consolidation) Act, 1993, as
amended, to provide for
habitual residence as a qualification for certain social welfare
payments
Social Welfare (Miscellaneous
Provisions) Act, 2004 (sections
22 and 23) (commencement)
order 2004
Number: SI 141/2004
Contents note: Appoints 5/4/
2004 as the commencement date
for ss22 and 23 of the act. Section
22 provides for the substitution of
a new part VII (equal pension treatment in occupational benefit
schemes) of the Pensions Act,
1990. Section 23 provides for miscellaneous amendments to other
sections of the Pensions Act,
1990. G
Prepared by the Law
Society Library
SOLICITORS DISCIPLINARY TRIBUNAL
These reports of the outcome of Solicitors Disciplinary Tribunal inquiries are published by the Law Society of Ireland as provided for
in section 23 (as amended by section 17 of the Solicitors (Amendment) Act, 2002) of the Solicitors (Amendment) Act, 1994
In the matter of Brendan
McManus, solicitor, and in the
matter of an application by the
Law Society of Ireland to the
Solicitors Disciplinary Tribunal
and in the matter of the
Solicitors Acts, 1954 to 2002
[4089/DT400]
Law Society of Ireland
(applicant)
Brendan McManus
(respondent solicitor)
On 11 March 2004, the Solicitors
Disciplinary Tribunal found that
the respondent solicitor was guilty
of misconduct in his practice as a
solicitor in that:
a) Up to the date of swearing of
the society’s affidavit, sworn on
30 May 2003, he failed to hand
over the title documentation
relating to two properties
owned by a former client in a
timely manner or at all, despite
being requested to do so
b) He failed to communicate with
the complainant in a timely
manner or at all
c) He failed to comply with an
undertaking to the Registrar’s
Committee that he would
revert to the society within two
weeks, which undertaking was
given to the Registrar’s
Committee meeting on 5
November 2002
e) He failed to reply to correspondence from the society and
in particular the society’s letters
of 5 September 2002, 18
September 2002, 30 September
2002, 8 November 2002, 21
November 2002, 19 December
2002, 13 January 2003 and 21
February 2003.
46
The tribunal ordered that the
respondent solicitor:
a) Do stand censured
b) Pay a sum of €500 each in respect of charges (a), (b), (c) and
(e) to the compensation fund
c) Pay the whole of the costs of
the Law Society (including witnesses’ expenses) as taxed by
the taxing master of the High
Court in default of agreement.
In the matter of Derek Stewart,
solicitor, carrying on practice
under the style and title of
Stewart & Company, Solicitors,
at 12 Parliament Street,
Temple Bar, Dublin 2, and in
the matter of the Solicitors Acts,
1954 to 1994 [4498/DT337]
Law Society of Ireland
(applicant)
Derek Stewart
(respondent solicitor)
On 21 October 2003, the Solicitors Disciplinary Tribunal found
that the respondent solicitor was
guilty of misconduct in his practice as a solicitor in that he had:
a) Failed to file an accountant’s
report for the year ended 28
February 2001 in a timely manner or at all, in breach of regulation 21(1) of the Solicitors’
accounts regulations no 2 of 1984
b) Failed to comply with a written
undertaking given to the society
on 31 January 2002 to complete
and lodge his accountant’s
report for the year ended 28
February 2001 and 28 February
2002 on or before 31 March
2002.
The tribunal ordered that the
respondent solicitor:
a) Do stand censured
b) Pay the sum of €7,500 to the
compensation fund
c) Pay the whole of the costs of the
Law Society of Ireland to be
taxed by a taxing master of the
High Court in default of agreement.
In the matter of Valentine A
Kirwan, solicitor, carrying on
practice under the style and
title of Kirwan & Company at
12 Herbert Place, Dublin 2, and
in the matter of an application by
the Law Society of Ireland to the
Solicitors Disciplinary Tribunal
and in the matter of the Solicitors
Acts, 1954 to 2002 [6158/DT412]
Law Society of Ireland
(applicant)
Valentine A Kirwan
(respondent solicitor)
On 25 March 2004, the Solicitors
Disciplinary Tribunal found that
the respondent solicitor was guilty
of misconduct in his practice as a
solicitor in that he had:
• Failed to file his accountant’s
report for the year ended 30
April 2002 in a timely manner
or at all, in breach of regulation
21(1) of the Solicitors’ accounts
regulations no 2 of 1984 as
amended by regulation 21(1) of
the Solicitors’ accounts regulations
2001 (statutory instrument no
421 of 2001).
The tribunal ordered that the
respondent solicitor:
a) Is hereby advised
b) Pay a sum of €500 to the compensation fund
Law Society Gazette
June 2004
c) Pay the whole of the costs
the Law Society of Ireland
taxed by the taxing master
the High Court in default
agreement.
of
as
of
of
In the matter of Christopher
Ryan, solicitor, carrying on
practice under the style and
title of Chris Ryan, Solicitor, at
18 North King Street, Dublin
7, and in the matter of an application by the Law Society of
Ireland to the Solicitors
Disciplinary Tribunal and in
the matter of the Solicitors Acts,
1954 to 2002 [4471/DT411]
Law Society of Ireland
(applicant)
Christopher Ryan
(respondent solicitor)
On 25 March 2004, the Solicitors
Disciplinary Tribunal found that
the respondent solicitor was guilty
of misconduct in his practice as a
solicitor in that he had:
• Failed to file his accountant’s
report for the year ended 30
April 2002 in a timely manner,
in breach of regulation 21(1) of
the Solicitors’ accounts regulations
2001 (statutory instrument no
421 of 2001), having only filed
same with the society on 30
May 2003.
The tribunal ordered that the
respondent solicitor:
a) Is hereby advised
b) Pay a sum of €500 to the compensation fund
c) Pay the whole of the costs of the
Law Society as taxed by a taxing
master of the High Court in
default of agreement. G
Briefing
Personal injury judgment
Employer liability – employee of the state – exposure to asbestos – application by state to dismiss claim on the
basis that pleadings disclose no cause of action – whether any physical injury – issue of whether cases should be
dismissed or stayed
CASE
Kiernan Rafter v the Attorney General, the Minister for Justice, Equality and Law Reform and the Commissioner of An Garda Síochána,
High Court, judgment of Finnegan P on 26 February 2004.
THE FACTS
iernan Rafter was employed
by the state at Government
Buildings. In the course of his
employment, he was exposed to
asbestos. He claims that in consequence of his exposure to
asbestos he sustained personal
injury. He issued a plenary summons on 8 May 2002. In the
statement of claim, it was plead-
K
ed that when he became aware
of his exposure to asbestos he
suffered from worry and anxiety.
By notice of motion dated 18
July 2003, the state sought an
order pursuant to order 19, rule
28 of the Rules of the Superior
Courts 1986 that Rafter’s claim
be struck out on the grounds
that it disclosed no reasonable
cause of action. In the alternative, the state sought an order
dismissing Rafter’s claim pursuant to the inherent jurisdiction
of the court.
Order 19, rule 28 of the Rules
of the Superior Courts provides as
follows: ‘The court may order
any pleading to be struck out, on
the ground that it discloses no
reasonable cause of action or
answer and in any case or in case
of the action or defence being
shown by the pleadings to be
frivolous or vexatious the court
may order the action to be
stayed or dismissed, or judgment
to be ordered accordingly, as
may be just’.
JUDGMENT OF THE HIGH COURT
he case came before
Finnegan P, who delivered
judgment on 26 February 2004.
Having set out the facts above,
Finnegan P referred to the case
of Barry v Buckley ([1981] 306),
to the effect that the court can
only make an order when the
pleadings disclose no reasonable
cause of action. The judge noted
that the court had an inherent
jurisdiction to stay proceedings
and, on application made to
exercise it, the court was not
limited to the pleadings of the
parties but was free to hear evidence and affidavits relating to
the issues in the case.
Finnegan P stated that the
court must be slow to exercise its
jurisdiction to dismiss an action,
referring to Sun Fat Chan v
Osseous Limited ([1992] 1 IR
425).
The judge then considered
issues in relation to the ‘fear of
disease cases’ dealt with by the
Supreme Court in Fletcher v
Commissioners of Public Works in
Ireland ([2003] 1 IR 465). In that
case, Fletcher had been awarded
damages by the High Court
T
(O’Neill J) for psychiatric illness
resulting from exposure to
asbestos in the course of his
employment, due to the want of
care of the defendants, and
Fletcher’s subsequent awareness
of the risk to his health arising
from such exposure. The
Supreme Court (Keane CJ,
Denham, Murray, Hardiman and
Geoghegan JJ) allowed the
appeal and held that the law in
Ireland should not be extended
by the courts so as to allow the
recovery by plaintiffs of damages
for psychiatric injury resulting
from an irrational fear of contracting a disease because of their
negligent exposure to health
risks by their employers while
the risk was characterised by the
medical advisers as remote. The
court held that it was unreasonable to impose a duty of care on
employers to guard against mere
fear of disease, even if such fear
might have led to a psychiatric
condition.
Finnegan P noted that in
Rafter’s statement of claim, it
was not pleaded that Rafter suffered from a recognised psychi-
atric illness but merely that he
suffered from worry and anxiety.
Finnegan P noted that the plaintiff must establish a physical
injury and that no physical injury
was
expressly
pleaded.
Accordingly, based on the pleadings, Rafter’s claim must fail and
the state was entitled to have the
claim dismissed or stayed under
the Rules of the Superior Courts.
Where the inherent jurisdiction of the courts is relied upon,
Finnegan P stated that he was
entitled to have regard to evidence, and in this case there was
an affidavit from Rafter’s solicitor. The affidavit exhibited a
report of Dr John A Griffin,
consultant psychiatrist, dated 11
July 2002. This was relied upon
as showing that Rafter in fact
suffers from a recognised psychiatric condition. Having read the
report, Finnegan P was not satisfied that the report was to this
effect and rejected this argument.
The affidavit, however, raised
an argument on the issue of liability. The affidavit referred to
evidence given by Professor
Law Society Gazette
June 2004
Luke Clancy in Fletcher v
Commissioners of Public Works in
Ireland, cited above, that persons
exposed to inhalation of asbestos
particles may suffer microscopic
scarring of the inner surface of
the lungs and that in Fletcher’s
case it was likely that he had
inhaled asbestos fibres and that
some would have remained in
his body and caused microscopic
scarring. However, Finnegan P
stated that there was nothing on
affidavit to suggest in the instant
case, having regard to the degree
of exposure to asbestos, that
Rafter was likely to have suffered
microscopic scarring.
The judge then stated that it
was appropriate under the
court’s inherent jurisdiction that
the claim should be dismissed or
stayed.
In the circumstances of the
case, Finnegan P considered it
appropriate that the action
should be stayed rather than dismissed. It may be that, on an
application to amend the pleadings, Rafter may be able to produce evidence that he suffers
from a recognised psychiatric
47
Briefing
condition and that in the circumstances of his exposure to
asbestos it was likely that he had
inhaled asbestos fibres and some
of them would have remained in
his body and would have caused
microscopic scarring.
Finnegan P stated that he was
aware that the Supreme Court
refrained from expressing any
view as to whether the implantation of fibres into the lung could
be described as physical injury.
The president ordered that
Rafter’s action be stayed so however that Rafter should be enti-
tled to amend his statement of
claim and may bring a motion to
do so. Such a motion should be
grounded on an affidavit by
medical experts that Rafter suffers from a recognised psychiatric illness and, in the circumstances of Rafter’s exposure to
asbestos, it was likely that he had
inhaled asbestos fibres and that
some of them would have
remained in his body and caused
microscopic scarring. G
This judgment was summarised by
solicitor Dr Eamonn Hall.
Update
News from Ireland’s on-line legal awareness service
Compiled by Karen Holmes for FirstLaw
ARBITRATION
Interest
Courts Act, 1981 – Arbitration
Act, 1954 – whether interest on the
arbitrator’s award should run from
the date of the award or from the
date of the High Court judgment
enforcing the award
The plaintiff and the defendant,
both of whom are veterinary surgeons, entered into a partnership
in 1989. Subsequently, difficulties arose between them as to the
affairs of the partnership and
they referred those differences
to arbitration. The arbitrator
made two interim awards before
making his final award on 26
November 1996. Both interim
awards expressly reserved for a
future award the question of
costs. In the final award, costs
were awarded to the plaintiff.
On 2 July 2001, the High Court
granted the plaintiff liberty to
enforce the arbitrator’s award in
the same manner as a judgment
or order to the same effect. It
was further ordered that the
plaintiff recover against the
defendant the sum of £30,331.65
(being the amount of the plaintiff’s bill of costs) and the costs of
the proceedings when taxed and
ascertained.
The
plaintiff
applied for interest on the bill of
costs. The High Court judge
refused to grant interest on the
arbitrator’s award. However, he
allowed interest to accrue from
48
the date of his judgment. The
plaintiff appealed against that
order of the High Court. In
written submissions, counsel on
behalf of the plaintiff submitted
that an arbitrator’s award of costs
should carry statutory (Courts
Act) interest as and from the date
of the award in the same way as
an award of costs in either High
Court or Supreme Court proceedings carries statutory interest as and from the date of judgment and not from the date of
the ascertaining of the amount
of such costs. The plaintiff contended that the term ‘sum’ contained within section 34 of the
Arbitration Act, 1954 includes a
sum that is unquantified at the
time of the award, but quantified
later. The defendant, on the
other hand, maintained that the
award in the case did not refer to
any ‘sum’ because that term
refers exclusively to a quantified
sum, a specific sum of money.
The
Supreme
Court
(Denham, Murray, Hardiman JJ)
allowed the appeal, holding that:
1) Given its natural and ordinary
meaning, the word ‘sum’
where it occurs in section 34
of the Arbitration Act, 1954 is
not confined to a specified
sum but is capable of referring
to a sum (as yet) unspecified
2) Although the term ‘award’ is
not defined in the Arbitration
Act, 1954, it has a clear meaning and refers to the decision
of the arbitrator
3) In light of the construction of
the 1954 act, the words ‘sum’
and ‘term’ have a plain meaning. It means that money
directed to be paid by a decision of an arbitrator shall,
unless the decision otherwise
directs, carry interest as from
the date of the decision and at
the same rate as a judgment
debt. This construction of
section 34 would also be consistent with the principle in
the case law on interest
payable on costs in court decisions
4) The fact that the arbitration
award requires to be enforced
by order of the court cannot
prevent interest thereon running from the date of the
award to be enforced
5) The High Court erred in not
including interest from the
date of the award and in offering no reasons for departing
from the usual rule.
Horan v Quilter, Supreme
Court, 1/3/2004 [FL8906]
CRIMINAL
Appeal, autrefois acquit
Appeal – retrial – Courts of
Justice Act, 1928 – whether a
prosecution should be prohibited in
circumstances where an alternative
charge had been withdrawn from
the jury
Law Society Gazette
June 2004
The applicant was tried in the
Dublin Circuit Court on 7
December 2000 on foot of an
indictment that originally contained only one count, namely,
robbery contrary to section 23 of
Larceny Act 1916 as amended.
The jury indicated to the trial
judge that they had encountered
difficulties reaching the verdict
and, accordingly, the trial judge
informed them that they could
consider the alternative charges
of assault with intent to rob and
attempted robbery. The trial
judge amended the indictment
to contain two charges and the
applicant was convicted by the
jury of both. The trial judge
directed the jury to enter a verdict of not guilty in respect of
the original charge of robbery.
The applicant appealed his conviction, and on 11 February
2002 the convictions and sentence were quashed and the
court ordered that the applicant
be retried for the offences on
which he was convicted.
Subsequently, the applicant was
arraigned on foot of an indictment that contained the original
charge of robbery only. On his
arraignment, the applicant told
the court that he had already
been acquitted of that charge.
The presiding judge took the
view that this was a plea of ‘not
guilty’. At the beginning of the
retrial, counsel on behalf of the
applicant applied to the trial
Briefing
judge by way of a plea of autrefois
acquit on the basis that the applicant had already been found not
guilty of this charge. The trial
judge discharged the jury and
made no further order. A new
indictment was prepared by the
DPP and contained the charge of
attempted
robbery
only.
Consequently, the applicant
made an unsuccessful application
to the High Court to grant an
order prohibiting the respondents from taking any further
steps or proceedings in the prosecution of the applicant. The
applicant argued that when the
matter had been withdrawn from
the jury in the second trial, the
effect of that was that there were
no further charges remaining on
the indictment and that it was
spent. He further argued that the
effect of withdrawing the robbery charge from the jury was
that the criminal proceedings
against him had been concluded.
The Supreme Court (Murray,
Hardiman, McCracken JJ) dismissed the appeal, holding that:
1) The power given to the Court
of Criminal Appeal by virtue
of section 5 of the Criminal
Justice Act, 1928, relating to
retrials, is not the power to
order a retrial in the sense
that it makes it mandatory on
the prosecution to retry the
accused, but rather that its
power is limited to ‘authorising’ a retrial. It is not mandatory for the prosecution to
initiate a retrial
2) Section 5 of the 1928 act
authorised the retrial of the
applicant on the charges that
were before the Court of
Criminal Appeal, and only
those charges. In the second
trial, the applicant was not
retried for the same offence as
that which was the subject of
conviction before the Court
of Criminal Appeal, nor was
he again indicted for such an
offence. Instead, it was mistakenly sought to retry him
for an offence for which he
had already been acquitted,
and to indict him for that
offence. Accordingly, the
authority given by the Court
of Criminal Appeal pursuant
to section 5 of the 1928 act
has not yet been exercised
and it remains a valid authority. The indictment that the
DPP now seeks to bring
before the court, and the
retrial that he seeks, are both
in accordance with the
authority given by the Court
of Criminal Appeal and are a
perfectly valid exercise of that
authority.
McCowan v DPP, Supreme
Court, 5/3/2004 [FL8912]
Extradition
Correspondence of offences – phrase
‘grievous bodily harm’ used in warrants – no factual details contained
in warrants – whether correspondence made out – Extradition Act,
1965, ss47 and 50
Two applications were heard
together. The first proceedings
related to an application by the
attorney general for an order
pursuant to s47 of the
Extradition Act, 1965 for the
return of Mr Heywood to the
UK on foot of three warrants
relating to charges of unlawfully
causing grievous bodily harm.
The second proceedings concerned an application by Mr
Heywood for an order pursuant
to s50 of the 1965 act directing
his release on the grounds that,
given the history of the proceedings and the delay in efforts to
extradite him, both on the part
of the Irish and UK authorities,
it would be invidious, unjust or
oppressive to now return him to
the UK to face his trial.
Peart
J
ordered
Mr
Heywood’s release in respect of
all three warrants, holding that
the warrants were deficient in
that they contained no factual
details upon which the court
could decide that the act complained of corresponded to an
offence in this jurisdiction.
Simply because the phrase
‘grievous bodily harm’ was a
phrase well known in the state
did not mean that correspondence was made out.
Attorney General v Heywood,
High Court, Mr Justice Peart,
24/2/2004 [FL8919]
CONTRACT
Breach of duty, fraud
Breach of contract – misrepresentation – breach of fiduciary duty –
whether the majority shareholder of
a company is entitled to recover any
loss from the defendant, given that
any loss suffered was suffered by the
company and not the individual
shareholder
In 1974, the plaintiff incorporated a company known as
Springmound (Holdings) Ltd,
and he was the majority shareholder. Subsequently, Springmound purchased two hotels in
Dublin, namely the Glencourt
Hotel and the Elmar Hotel.
Approximately 12 years later, the
plaintiff left Ireland in order to
pursue business interests abroad.
The plaintiff maintained that
prior to his departure he entered
into an oral agreement with his
brother, the defendant, whereby
the defendant would run the
bed-and-breakfast
business
being conducted at each hotel.
The defendant was to use two
trading companies for the purpose of running those bed-andbreakfast businesses, namely,
Gembridge Taverns Limited in
respect of the business of the
Glencourt Hotel and Laurello
Limited in respect of the Elmar
Hotel. The plaintiff alleged that,
on or about 18 June 1986, the
defendant wrongfully and fraudulently caused Springmound to
sell the Elmar to Gembridge for
the sum of £50,000, and on the
same date to sell the Glencourt
to Laurello for the sum of
£50,000 and that those sales
were made without the knowledge, authority or consent of the
plaintiff, were a fraud on the
plaintiff,
a
fraud
on
Springmound, were in breach of
the defendant’s agreement with,
and representations and warranties to the plaintiff, were in
breach of the fiduciary duty
owed by the defendant to the
plaintiff, were ultra vires the
capacity of Springmound, and
that they were sold at a gross
undervalue. The plaintiff also
maintained that the defendant
caused Gembridge and Laurello
Law Society Gazette
June 2004
to be liquidated and that the two
companies were dissolved on 15
November 2001 and 21 January
2002 respectively. Consequently,
the plaintiff sued the defendant
for damages for fraud, breach of
contract, misrepresentation and
breach of fiduciary duty. The
defendant contended that the
plaintiff’s claim in reality was a
claim which, if the facts were
proven, could be brought only
by the company, now in liquidation, because the damage suffered was in fact damage suffered
by the company, that is, by the
fraudulent sale of two of its
assets – namely, the hotels. The
defendant also disputed factual
matters and maintained that the
plaintiff could not succeed on
the merits either. Accordingly,
the defendant brought an application for an order dismissing
the plaintiff’s claim on the
grounds that it disclosed no
cause of action, or, in the alternative, an order dismissing the
plaintiff’s claim as being an abuse
of process and as being frivolous
and vexatious, and also sought an
order striking out so much of the
plaintiff’s statement of claim as
asserted rights on behalf of
Springmound Limited.
Mr Justice Peart struck out
as much of the plaintiff’s statement of claim as asserted rights
on behalf of Springmound
(Holdings) Limited, holding
that:
1) The essential matter for
determination was whether,
even if he could prove everything he alleged, the plaintiff
was entitled to recover any
loss from the defendant, given
that the loss, if any, which has
been suffered, has been suffered by the company, and not
by the plaintiff as an individual shareholder
2) This is an action which is
bound to fail, not because the
plaintiff could not under any
circumstances prove that
something irregular occurred
by which the hotels in question were sold without his
knowledge, consent or agreement, but because, even if he
did succeed in proving every-
49
Briefing
thing that he alleged against
the defendant, the law, as it
stands, and as is well settled
by now, did not provide him
in his personal capacity as a
shareholder with a remedy
against the defendant in civil
proceedings.
Heaphy v Heaphy, High Court,
Mr Justice Peart, 15/1/2004
[FL8986]
DAMAGES
Redundancy, unfair dismissal
Employment – unfair dismissal –
redundancy – injunction – damages
– whether plaintiff could make a
claim for unfair dismissal under the
common law rules and therefore
outside the statutory framework
The plaintiff, who was an engineer, joined KAO Information
Systems in 1995. Subsequently,
there was a transfer of undertaking by KAO to the defendant
company in 1999 and the plaintiff’s employment continued
pursuant to the EU Acquired
rights directive. The plaintiff was
appointed client services manager of Microsoft Business by the
defendant, pursuant to a contract dated 16 May 2000. That
contract set out the relevant
notice period required to be
given in order to terminate the
contract. In November 2003, the
defendant decided to amalgamate the plaintiff’s role and the
position of contract centre manager to create a new business
relationship manager role. The
plaintiff unsuccessfully applied
for the position. Subsequently,
the plaintiff received a letter
from the director of the defendant company stating that he
was entitled to two months’
notice of the termination of his
employment together with
statutory redundancy. The
plaintiff was offered the choice
of receiving pay in lieu of notice
and an ex gratia payment equivalent to one month’s salary.
Further correspondence and
meetings took place and the
plaintiff stated that the ‘purported redundancy’ was not accepted
by him. Consequently, the plain-
50
tiff was put on ‘garden leave’
with pay for the duration of the
notice period. The plaintiff did
not return to work and a plenary
summons was issued on 3
February 2004, challenging the
validity of the redundancy. On 4
February 2004, the plaintiff
issued a notice of motion claiming certain financial and injunctive reliefs, including an order
that the defendant continue to
pay his salary and fund and
maintain his pension and life
assurance benefits until the trial
of the action and also an injunction restraining the purported
termination and the performance of the plaintiff’s duties by
any person other than the plaintiff. The plaintiff claimed that
the issue to be tried was that he
was unfairly dismissed because
there was no valid redundancy
and he was really dismissed
because of criticisms made about
him by Microsoft. The plaintiff
also claimed that there must be
an implied term in the contract
that the employer must act reasonably and fairly. The defendants countered this argument
by submitting that that was not a
fair issue to be tried, as unfair dismissal is governed by the Unfair
Dismissals Acts, which provide a
statutory remedy which is mutually exclusive to the commonlaw remedy for damages.
Carroll J refused to grant the
relief sought, holding that:
1) The case law adduced by the
defendant supported the
proposition that the common
law claim for damages for
wrongful dismissal and the
statutory claim for unfair dismissal were mutually exclusive. The plaintiff was
attempting to introduce a new
obligation under the common
law on the employer to act
reasonably and fairly in the
case of dismissal. However, at
common law an employer can
terminate employment for
any reason or no reason provided adequate notice is
given. There was no allegation by the plaintiff that the
notice provided to him was
inadequate. Accordingly, the
plaintiff failed to demonstrate
that there was a fair issue to be
tried. Parsons v Iarnród Éireann ([1997] ELR 203) and
Johnson v Unisys Limited
([2001] 2 AER 801) followed
2) Obiter: damages would be an
adequate remedy and in fact
would be the only remedy
available to the plaintiff. It
was highly unlikely that he
would be reinstated in
employment where the defendants were unwilling to take
him back and had no place for
him
3) Obiter: if the plaintiff did not
succeed at the trial, there
would be a real injustice to the
defendant if it was obliged to
pay the plaintiff his salary
until the date of the trial. The
case law adduced in support of
that application involved cases
that were emphasised as containing special or exceptional
circumstances. The plaintiff
did not allege irreparable loss
and damage if deprived of his
salary and he failed to make
out a case on the balance of
convenience that he should be
paid his salary after the period
of notice expired.
Orr v Zomax Limited, High
Court, Ms Justice Carroll,
25/3/2004 [FL8944]
TORT
Medical negligence, res
ipsa loquitur
Whether doctrine of res ipsa
loquitur applied – whether injury
could have occurred if plaintiff had
received appropriate care at all times
The plaintiff was admitted to
hospital and underwent an operation on his stomach area. After
the operation, the plaintiff experienced severe pain in his right
arm and right shoulder and had
since experienced disability and
hypersensitivity in the arm. It
was common case that there was
nothing wrong with the plaintiff’s arm when he entered hospital. He brought a medical negligence action against the consultant surgeon who had carried out
the operation and the hospital.
Law Society Gazette
June 2004
O’Donovan J found that the
plaintiff was entitled to succeed
against the hospital, holding that
the doctrine of res ipsa loquitur
applied. The plaintiff’s claim
against the surgeon failed. The
injury suffered by the plaintiff
had to be attributable to some
want of care while he was under
the control of the hospital and
the court was entitled to conclude that the hospital was
responsible without being able to
say precisely how it was caused.
Doherty v Reynolds, High
Court, Mr Justice O’Donovan, 13/2/2004 [FL8899]
Personal injuries, dismissal
of proceedings
Exposure to asbestos – no recognised
psychiatric or physical injury pleaded
– whether oppressive to defendant to
allow claim to go to hearing
The defendant sought an order
dismissing the plaintiff’s claim on
grounds that the pleadings disclosed no reasonable cause of
action. It was agreed that the
determination of the motion
would also regulate a number of
other identified actions. The
plaintiff pleaded that he sustained
injury as a result of exposure to
asbestos. He pleaded that he
became annoyed and upset when
he became aware of the exposure
but did not plead any recognised
psychiatric or physical injury.
Finnegan P made an order
staying the actions, holding that
the law in general provided no
remedy for annoyance, upset or
distress. It would be oppressive
to allow the claims to go to hearing where, on the pleadings, no
recognised psychiatric illness
was pleaded.
Packenham v Irish Ferries Ltd,
High Court, Mr Justice Finnegan, 26/2/2004 [FL8961] G
The information contained here
is taken from FirstLaw’s Legal
Current Awareness Service,
published every day on the internet
at www.firstlaw.ie. For more
information, contact bartdaly@
firstlaw.ie or FirstLaw, Merchants
Court, Merchants Quay, Dublin 8,
tel: 01 679 0370, fax: 01 679
0057.
Briefing
Eurlegal
News from the EU and International Affairs Committee
Edited by TP Kennedy, director of education, Law Society of Ireland
A new era in European merger control
he new EC merger regulation (ECMR) came into
force on 1 May 2004. This
marks the most significant overhaul of European merger-control law since its introduction
over a decade ago. The reform
covers the jurisdictional, procedural and substantive aspects of
the ECMR. A number of important non-legislative developments have also been adopted.
The reform process began
with the publication of a green
paper
by
the
European
Commission in late 2001. The
following year, the commission
saw three of its decisions to prohibit a merger overturned by the
European Court of First
Instance. The shockwaves generated by these setbacks gave further impetus to the commission’s
efforts to revamp European
merger control. In late 2002,
after examining the many
responses to its proposals, the
commission adopted the socalled ‘Christmas package’ containing a wide range of proposed
reforms. This package of initiatives included a legislative proposal for a revised ECMR
together with various internal
reforms, such as proposed guidelines on horizontal mergers and a
series of draft best practices. On
20 January 2004, after a lengthy
negotiation period, the EU
Council of Ministers adopted
council regulation EC 139/2004
on the control of concentrations
between undertakings.
T
Jurisdictional thresholds
The major advantage of the
ECMR is the ‘one-stop shop’
principle. This means that a proposed merger may be assessed by
the commission alone, rather
than being subject to different
review processes in one or more
individual EU member states.
The one-stop shop reduces
red tape and increases legal
certainty.
For a merger or acquisition
(described in the ECMR as a
‘concentration’) to be notifiable
under the ECMR, the parties
involved must have an cumulative global turnover of more
than €5 billion, and each of at
least two of the parties must have
a cumulative EU-wide sales of
more than €250 million (unless
each achieves more than twothirds of its EU turnover in one
and the same EU member state).
There is also an alternative and
more complicated test where
notification will be required if
the parties’ cumulative global
turnover is more than €2.5 billion and where the parties individually and collectively satisfy a
number of EU-wide and EU
member-state sales thresholds.
Given that the commission’s
stated aim was to reduce the
number of multiple filings under
national merger-control rules, it
is perhaps unfortunate that the
ECMR’s existing turnover
thresholds were not lowered. It
may nevertheless be easier for
merging parties to satisfy these
jurisdictional thresholds, as, with
the addition of ten new EU
member states in May 2004, the
ECMR will apply to the parties’
sales in a considerably larger
geographical area.
Transactions that do not satisfy the ECMR thresholds may
require notification under a
number of different national
merger-control regimes. Given
the fact that the individual
review periods vary under
national merger-control rules,
these so-called ‘multi-jurisdictional’ filings may significantly
complicate the completion of
transactions. Multiple notifications may also lead to conflicting
outcomes.
Therefore, in order to make it
easier for companies to avail of
the one-stop shop, the EU has
reformed the ECMR referral
process. The reform allows
mergers that fall under national
rules to be reviewed by DG
Competition (the commission’s
merger-control department). It
also permits transactions that
trigger the ECMR thresholds to
be examined under national
merger-control rules. The referral procedures under the old
ECMR were seldom used. This
was perhaps because only the
national competition authorities
had the right to request a referral. Merging parties now have
the exclusive right, prior to notification, to request a referral
both from an EU member state
to the commission and from the
commission to an EU member
state. Moreover, national competition authorities (either on
their own initiative or following
an invitation from the commission) retain the right to request a
post-notification referral in both
directions.
The commission has recently
published draft guidelines on
case allocation between the
commission and EU member
states. These outline the legal
requirements (and other factors)
to be considered by the commission, national competition
authorities and the merging parties when contemplating pre- or
post-filing referrals. One of the
key criteria is the likely locus of
Law Society Gazette
June 2004
the competitive effects of the
proposed merger. The draft
guidelines also describe the
mechanics of the referral system.
It is expected that these guidelines will be finalised this summer.
Member state to commission
Parties to transactions that do
not require a mandatory filing
under the ECMR may now seek
to benefit from the one-stop
shop, provided the proposed
merger is capable of being
reviewed by the national competition authority in three or more
EU member states. Prior to
notification to these national
authorities, the parties may
make a reasoned request to the
commission for the transaction
to be referred to it. Such a
request will be deemed accepted
if no affected EU member state
objects within 15 working days.
Silence will be seen as assent.
This reform poses potential
difficulties. For instance, a single
EU member state’s opposition
will be sufficient to prevent a
referral to the commission.
Therefore it would be worthwhile ensuring that this veto will
not be applied before a request is
made
by
the
parties.
Accordingly, the merging parties
should invoke the referral procedure early, well before concluding the agreement.
Commission to member state
In addition, parties will be able,
prior to notification under the
ECMR, to seek the referral of a
merger to a national mergercontrol body on the basis that it
may significantly affect competition within a particular EU
member state. Provided that the
51
Briefing
EU member state concerned
does not object, the commission
must decide whether or not to
comply with the request within
25 working days. Silence on the
part of the commission is
deemed to constitute agreement.
The purpose of this reform is
to allow the ‘best placed’ regulator to review the proposed
merger. The obvious disadvantage is that, in requesting a referral, merging parties must identify potential competition issues in
particular national or local markets. As the commission is not
bound to accede to the request,
parties should take soundings
from the commission, and possibly the relevant national competition authority, at an early stage.
Extraterritoriality
Notably absent from the reforms
is any attempt to deal with the
extraterritoriality of European
merger control. Clearly, the
commission should review any
transaction
(provided
the
turnover thresholds are met)
that,
notwithstanding
the
nationality of the companies
involved, may affect competition
in the EU. However, should the
commission review the establishment of joint ventures where
the proposed transaction has no
effect in Europe? For instance, if
two European construction
companies establish a joint venture in Rio de Janeiro and the
ECMR thresholds are met, a
notification to the commission is
required. Is this mandatory filing
justified in a situation, such as
the Brazilian example, where the
joint venture will have no actual
impact on competition in
Europe? This issue will need to
be addressed in the future.
Procedural reform
Another major change is that the
new ECMR will allow parties to
file a notification prior to the
conclusion of a binding agreement. Until now, parties have
been required to file within one
week of the conclusion of an
agreement, the announcement
of a public bid or the acquisition
of a controlling interest. (The
52
commission has rarely enforced
this one-week deadline.) This
requirement is retained in the
new ECMR, but without any filing deadline. Merging parties
should, however, notify their
transaction so as to give the
commission sufficient time to
review and approve the deal
before the intended completion
date. In addition, the parties may
notify where they show in good
faith that they intend to conclude an agreement (producing,
for example, a letter of intent) or
that they plan to make a public
bid, provided both situations
result in a concentration which
satisfies the ECMR’s turnover
thresholds.
A subtle twist, but one that
heralds a major extension in the
timing for clearances, is the
requirement to calculate all
ECMR deadlines in terms of
working rather than calendar
days. The phase I review period
under the previous ECMR was
very tight – one calendar month.
The commission will now usually take up to 25 working days –
in effect five weeks – from the
date of receipt of a complete
notification to review a merger
in phase I.
The new regime strengthens
the commission’s powers of
investigation regarding mergers.
In particular, the commission
will be able to examine and take
copies of documents from a
business premises during a surprise visit or ‘dawn raid’.
However, in contrast to its new
Substantive test
Under the previous regime, the
commission was legally obliged
to prohibit a merger that would
‘dominance’ test, while others
argued for the adoption of compromise wording.
The EU ultimately decided to
adopt a new substantive test. A
merger will be prohibited if it
‘significantly impedes effective
competition’. (This is likely to
become known as the SIEC
test.) This will particularly be
the case where a dominant position has been created or
strengthened. This SIEC test
will extend beyond this, but only
to situations where a proposed
merger would give rise to anticompetitive effects resulting
from the non-co-ordinated
behaviour of undertakings that
would not have a dominant position on the relevant market.
have ‘created or strengthened a
dominant position’. The difficulty with this test was that it did
not allow DG Competition to
deal with a situation where there
were no dominance issues, but
competition concerns nonetheless resulted from the existence
of a non-collusive oligopoly.
Where such an oligopoly exists,
the concentration may have the
effect of eliminating or dampening competition.
In the legislative process leading up to the adoption of the
new ECMR, the UK and Ireland
both recommended the acceptance of the ‘substantial lessening
of competition’ test that each
had recently introduced into its
national merger-control regime.
Certain EU member states
wanted to retain the existing
Guidelines on horizontal
mergers
In conjunction with the adoption of the SIEC test, the commission has published guidelines
on the assessment of transactions between actual or potential
competitors. The purpose of
these guidelines is to set out the
commission’s approach to transactions commonly known as
horizontal mergers. The aim is
to provide greater predictability
with a view to increasing legal
certainty for all concerned.
These guidelines explore the
possible anti-competitive effects
of horizontal mergers and consider the main ways in which a
horizontal merger may significantly impede competition. The
commission
will
examine
whether a proposed transaction
will allow the merged entity to
raise prices profitably (non-coordinated or unilateral effects)
or whether a proposed merger in
a concentrated market will
increase the likelihood that companies will co-ordinate their
behaviour with a resulting
increase in prices (co-ordinated
effects). The guidelines also
examine situations whereby efficiencies may counteract the proposed transaction’s adverse
effects on competition. The key
criterion in examining efficiency
claims is that consumers should
not be worse off as a result of the
powers under European competition enforcement rules, the
commission remains unable to
conduct searches of private
homes.
In addition to its pre-existing
powers to request information,
the commission will also be able
to conduct interviews with an
individual or representative of a
company for the purposes of its
investigation into a merger, providing that consent is obtained.
These discussions may be carried out ‘face to face’, by telephone or by videoconference.
Law Society Gazette
June 2004
Briefing
proposed merger. Any efficiencies must be merger-specific,
likely to materialise and substantial enough to outweigh any
anti-competitive effects of the
proposed transaction.
The commission plans to
issue guidance on vertical and
conglomerate mergers by the
end of 2004.
Best practices
DG Competition has adopted a
series of best practices regarding
the day-to-day conduct of EC
merger-control proceedings. It
intends to provide the parties
with increased and earlier
opportunities to defend their
proposed merger. The notifying
parties will normally be afforded
the opportunity of attending a
‘state of play’ meeting at five different points in the phase I and
phase II procedure. The purpose
of these meetings is to provide a
voluntary forum for the
exchange of views between the
notifying parties and the DG
Competition case team.
The best practices also
encourage the parties to enter
into pre-notification contacts
with DG Competition. This will
provide an opportunity to discuss jurisdictional, substantive
and other issues regarding the
proposed transaction.
From the parties’ perspective,
it is important that any competition issues are identified as early
as possible.
Fines and forms
Under the old ECMR, the maximum penalty for failure to notify was €50,000. Under the new
rules, this has been increased to
10% of the relevant company’s
global turnover. Moreover, a
company may be fined up to 1%
of its worldwide turnover for
supplying incorrect information
to the commission in the context
of a notification or for giving
incorrect answers to question
asked by commission officials
during a ‘dawn raid’. These
changes align the commission’s
power to impose fines for
breaches of the ECMR with its
powers under European antitrust rules.
Commission regulation EC
802/2004 implementing the new
ECMR was adopted on 7 April.
This implementing regulation
sets out detailed provisions
regarding notifications, timelimits, access to the commission’s
file and treatment of confidential
information. Notifications must
be submitted to the commission
on a revised form CO. This new
form is annexed to the implementing regulation. A request
made by merging parties for a
referral prior to notification
must be submitted on a form RS
(which is also annexed to the
implementing regulation).
The new ECMR, the implementing regulation and other
related documents, including the
guidelines on horizontal mergers, the draft notice on case allocation and the series of best
practices are available at:
http://europa.eu.int/comm/
competition/mergers/legislation/
regulation/#implementing .
Companies should welcome
the increased transparency
brought about by the adoption
of substantive guidelines and the
introduction of procedural safeguards for notifying parties.
However, businesses may worry
that changes to the substantive
test may lead to increased future
intervention by the commission.
Moreover, there are clear concerns that the operation of the
new referral system will result in
undue delays. Therefore, it is all
the more important that any
merger control or competition
issues are addressed as early as
possible. G
Cormac Little is an associate with
Dublin law firm William Fry.
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June 2004
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53
Briefing
Recent developments in European law
AGRICULTURE
Case C-294/01 Granarolo SpA v
Comune
di
Bologna,
13
November 2003. Granarolo markets in Italy high-temperature pasteurised milk produced in
Germany. The Comune di Bologna
fined it for marking on packaging
a use-by date of more than four
days after the date of treatment.
Granarolo appealed, arguing that
the Italian law was contrary to EC
law. It argued that its milk was
pasteurised by a steam infusion
procedure, which is more powerful than traditional methods and
which results in milk with a longer
shelf life, but with nutritional qualities comparable to those of fresh
pasteurised milk.
The ECJ held that directive
92/46, laying down health rules
on the production and marketing
of milk, is intended to facilitate
the marketing and free movement
of milk products covered by it.
This measure will be compromised by a member state fixing a
use-by date for a milk product that
is likely to constitute a serious
obstacle to the marketing of
those products in a state. Italian
legislation fixed the same use-by
date for high-temperature pasteurised milk and fresh pasteurised milk. The advantage of
high-temperature pasteurised
milk is that it has a longer shelf
life, and to prevent it being marketed as having this advantage
puts a serious obstacle in the way
of its free movement. Thus, the
ECJ held that the Italian legislation was precluded by directive
92/46 (as amended) and articles
28 and 30 of the treaty.
COMPETITION
Case C-418/01 IMS Health
GmbH & Co OHG v NDC Health
GmbH & Co KG, 29 April 2004.
Both parties are involved in the
tracking of sales of pharmaceutical and healthcare products. IMS
54
provides pharmaceutical laboratories with German regional sales
data on pharmaceutical products,
formatted in a particular structure. It not only sold this structure
but also distributed it to pharmacies and doctors’ surgeries for
free. As a result, its structure
became a model to which clients
adapted their information and distribution systems.
In 1998, a director left IMS
and established his own company, PII. This company attempted
to sell German regional sales
data using a different structure.
As this did not succeed, it worked
with structures very similar to
those of IMS. PII was acquired by
NDC.
IMS obtained a court order
prohibiting NDC from using any
structure derived from its structure, as this was a database protected by copyright. Questions
were referred to the ECJ asking
whether the refusal of a licence
by IMS to NDC to use its structures could be construed as an
abuse of a dominant position.
The ECJ firstly considered
whether this database was indispensable to an undertaking to
carry out business in the relevant
market. In this case, the high
degree of participation by the laboratories in the improvement of
the structures may have resulted
in a high degree of technical
dependency by users on these
structures. The laboratories
would have to make very significant technical and financial
efforts to be able to acquire data
presented on the basis of an
alternative structure.
The exclusive right to reproduction forms part of the copyright-holder’s rights. A refusal of
a licence cannot, of itself, be an
abuse of a dominant position.
However, the exercise of an
exclusive right can, in exceptional
circumstances, give rise to abusive conduct. In order for the
refusal by an undertaking that
owns a copyright to give access
to a product or service indispensable to carry on business to be
regarded as an abuse, three conditions must be fulfilled: the
under taking requesting the
licence must intend to offer new
products or services not offered
by the owner of the copyright and
for which there is a potential consumer demand; the refusal cannot be justified by objective considerations; and the refusal must
be such as to reserve to the
undertaking that owns the copyright the relevant market by eliminating all competition on that
market.
EMPLOYMENT
Case C-340/01 Carlito Abler and
Others v Sodexho Catering
Gesellschaft mbH, 20 November
2003. In late 1990, an
orthopaedic hospital in Austria
agreed with an undertaking,
Sanrest, that it would take over
the management of catering services in the hospital, providing
patients and staff with meals and
drinks. The hospital provided the
premises, water, energy and
equipment. Sanrest took over the
running of the cafeteria. Until
1998, it provided outside customers with meals prepared in the
hospital kitchen. Following disagreements between the hospital
and Sanrest, the agreement was
terminated. After a tendering
process, the contract was awarded to a new undertaking,
Sodexho.
Sodexho refused to take over
materials, stock and employees
from Sanrest. It received no
accounts, menu plans, diet plans
or general records from Sanrest.
In late 1999, Sanrest terminated
the contracts of its employees
who had worked in the hospital.
They brought an action against
Sodexho, arguing that their
employment continued with it on
the basis of a transfer of under-
Law Society Gazette
June 2004
takings. The ECJ held that directive 77/187 on transfer of undertakings did cover a situation such
as this. The second contractor
used substantial parts of the tangible assets previously used by
the first contractor. The second
contractor’s expression of intent
not to take on the employees of
the first contractor was not material.
INTELLECTUAL
PROPERTY
Case C-216/01 Budejovicky
Budvar, národni podnik v Rudolf
Ammersin GmbH, 18 November
2003. Budvar exports a beer
called Budweiser Budvar to
Austria. Ammersin markets
another beer called American
Bud in Austria. In 1999, Budvar
brought proceedings against
Ammersin, seeking to restrain it
from using in Austria the name
‘Bud’ or similar designations likely to cause confusion for beer or
similar goods. An Austrian court
granted the order. An appeal
court stayed its proceedings and
referred a number of questions to
the ECJ.
It held that article 28 of the
treaty and regulation 2081/92 on
the protection of geographical
indications did not preclude the
application of a bilateral agreement between a member state
and a third state under which a
simple and indirect indication of
geographical origin from that third
state is protected. This is the
case whether or not there is any
risk of consumers being misled.
The import of a product lawfully
marketed in another member
state may be prevented. Article
28 precludes the application of
such a bilateral agreement under
which a name that in that state
does not directly or indirectly refer
to the geographical source of the
product that is designates is
accorded protection in the importing member state. G
People and places
Kilroy was here
On 6 May, Kilroys Solicitors celebrated 50 years in practice with a
party at the Mansion House, Dublin, as guests of the lord mayor.
Pictured at the event are Paddy Kilroy, who founded the firm in 1954,
and Dorothy Kilroy, alongside some of the firm’s partners (from left):
Kevin O’Brien, Joanne Griffin, Thomas Simpson, Anthony Layng,
Hilary Griffey and Eamon Jones
The justice league
Pictured at the recent CPD seminar on the European Convention on
Human Rights Act, 2003 at Blackhall Place are (from left) the Law
Society’s Barbara Joyce, Terence Lacey of Franklin, Solicitors, Belfast,
Michael Farrell of Michael E Hanahoe, Solicitors, Mr Justice Nial Fennelly,
of the Supreme Court, Noeline Blackwell of Blackwell & Company, TCD’s
Professor William Binchy and Muriel Walls of McCann FitzGerald
That’s our girl
The Irish Professional Photographers’ Association gave Roslyn Byrne the
award for the best commercial image for 2004, out of more than 1,000
pictures, at an awards ceremony at the Burlington Hotel. She was also
recently named UK Merit Winner by Fuji UK and Kodak. Roslyn (centre) is
a freelance photographer who regularly shoots for the Gazette and is
responsible for many of the magazine’s covers
Export import
Pictured at the launch in May of Intellectual property management:
a guide for exporters, published by the Irish Exporters Association in
conjunction with Tomkins & Co, are (from left) Dr Christina Gates
of Tomkins & Co, Mike Feeney of Enterprise Ireland, minister of state
for trade Michael Ahern and John Whelan of the Irish
Exporters Association
Spring in their step
he Lady Solicitors’ Golf Society had a very
successful spring outing on 23 April at the
City West Golf Club. Overall winners on the day
were Maria O’Brien (first), Marie Garaghy
(second), Mary Delahunty (third), Maeve Carroll
(fourth), Mary Casey (first nine), Rhona Kelly
(second nine). Winners in category 1 were Mary C
Dillon (first), Rosemary Kirwan (second) and Emer
Foley (third) and, in category 2, Michele Linnane
(first), Martina O’Gorman (second) and Ursula
McSweeney (third). The society’s next outing will
be on 10 September at Seafield Golf Club,
Ballymoney, Co Wexford. If you would like to be on
the mailing list, contact Jane Mathews, BCM
Hanby Wallace, on tel: 01 418 6900, e-mail:
[email protected].
T
The winners
Law Society Gazette
June 2004
55
People and places
Crime and punishment
Kerry Law Society members recognise the sterling service of retired District Court clerk Richard Maguire and retired chief superintendent for
the Kerry area, Fred Garvey
Keep your hands to yourself
John Eardly BL, author of Sex discrimination at work: a practical guide
to the law in Ireland, and Gary Byrne, managing partner of BCM Hanby
Wallace, who was guest speaker at the book’s launch on 12 May
Helping solicitors to respond to the Law Society
The panel that assists solicitors who are in difficulty with the Law
Society. Pictured are (standing, from left) registrar of solicitors John
Elliot, Dundalk solicitor Roger McGinley, Therese Clarke, secretary of the
society’s Guidance and Ethics Committee, and Tallaght solicitor Oonagh
Sheridan; (seated, from left) Wicklow solicitor Finola Freehill,
John O’Malley, chairman of the Guidance and Ethics Committee, and
Maynooth solicitor Mary Cowhey
Six of the best
McCann FitzGerald has elected six new partners: (from left) Jane
Ward, Hugh Beattie, Valerie Lawlor, Mark White, Fergus Gillen
and Sheila Gibbons
Where there’s a will, there’s a way
The speakers and chairman at the recent Probate practice revisited
conference in Galway with the Galway Bar Association president (from
left): Anne McKenna and Nuala Casey of Daly Lynch Crowe & Morris;
Paula Fallon, Paula Fallon & Associates; Donough McGuinness, DP
Hurley & Co (chairman); Annette O’Connell, Probate Office,
and GBA president Ann Jennings
56
Law Society Gazette
June 2004
People and places
Certificate in legal Spanish
The Spanish Main
Pictured with the recipients at the conferring ceremony for the inaugural Certificate in
legal Spanish were Stuart Gilhooly, vice-chairman of the Education Committee, the
Spanish ambassador D Enrique Pastor, Law Society director general Ken Murphy
and Eva Massa, lecturer on the course
Mainly on the plain
Law Society director of education TP Kennedy,
lecturer Eva Massa, Stuart Gilhooly, vice-chairman
of the Education Committee, Spanish ambassador
D Enrique Pastor and Sra de Pastor, director
general Ken Murphy, and Sylvia McNeece,
legal development manager
OBITUARY
Eamonn O’Beirne
25 November 1911 – 16 February 2004
amonn O’Beirne was born in 1911
at the family home, Prince of
Wales Terrace, Bray, Co Wicklow. His
father was a Dublin solicitor practising
at 2 Inns Quay, Dublin 7, and
tragically died before Eamonn was
born. His mother also tragically died
soon after his birth, and Eamonn and
his sister Kitty were reared by the
Cullen family at Rathmore, Ashford,
Co Wicklow. Eamonn was educated at
school in Wicklow town and later at
Castleknock College, where he was a
boarder for a number of years. He
excelled in his examinations at school and also played on the
junior and senior rugby teams. He became apprenticed to his
cousin, Augustus Cullen, and qualified as a solicitor in 1932.
They were partners for many years in the practice Cullen &
O’Beirne. Among Eamonn’s numerous apprentices were
Laurence Cullen (former president of the Law Society),
Michael Staines (late of John J O’Hare Solicitors and an active
Law Society committee member), Gus Cullen Junior and his
E
son Barry, who is now principal of
Cullen & O’Beirne Solicitors.
Eamonn’s wife Peggy died on 30 June
1980.
Eamonn was well known for his
meticulous standards of practice and
ethics, and his honesty and integrity
was unquestionable. He will be deeply
missed by the many clients he loyally
served over many years. Eamonn
continued working in the practice
until his passing on 16 February 2004.
Eamonn died at home at Prince of
Wales Terrace, Bray, in the house
where he had been born. He was in his 73rd year of practice and
was 92 years of age.
Eamonn will be sadly missed by his children, Louise, Brian,
Edward and Barry, grandchildren, relatives and friends. His
sons, Edward and Barry, are well known solicitors and continue
in their father’s footsteps. G
Law Society Gazette
June 2004
BO’B
57
Professional
information
LOST LAND
CERTIFICATES
Registration of Title Act, 1964
An application has been received
from the registered owners mentioned in the schedule hereto for the
issue of a land certificate as stated to
have been lost or inadvertently
destroyed. A new certificate will be
issued unless notification is received
in the registry within 28 days from
the date of publication of this notice
that the original certificate is in existence and in the custody of some
person other than the registered
owner. Any such notification should
state the grounds on which the certificate is being held.
(Register of Titles), Central Office,
Land Registry, Chancery Street,
Dublin
(Published 4 June 2004)
Regd owner: Bernard Harten,
Callanagh, Kilcogy, Co Cavan;
folio: 16543; lands: Cloncovet;
area: 9.2141 hectares, 0.2326
hectares, 1466 hectares; Co
Cavan
Regd owner: Brendan L Brophy;
folio: 1360L; lands: Carlow and
barony of Carlow; Co Carlow
Regd owner: James and Caitriona
Curry; folio: 16411F; lands:
Castlemore and barony of
Rathvilly; Co Carlow
Regd owner: Sandra Dempsey;
folio: 11963F; lands: Ballyellen
and Tomdarragh and barony of
Idrone East; Co Carlow
ABACUS
BOOK KEEPING
SERVICES
SPECIALISING IN
LEGAL ACCOUNTS,
NORTH EASTERN
REGION
For further information,
please contact
Fleur @
042-9382157
086-8147270
[email protected]
58
Regd owner: Jean Margaret Biggs;
folios: (1) and (2) 29494 and (1a)
and (2a) 130F; lands: Glencolumbkille South and barony of
Burren; area: (1) 1.9670 hectares,
(2) 0.4700 hectares, (1a) 0.1188
hectares and (2a) 0.4299
hectares; Co Clare
Regd owner: James Fahy and Mary
Fahy; folio: 5716F; lands: townland of Clonroad More and
barony of Islands; Co Clare
Regd owner: John and Esther
Corcoran; folio: 5650F; lands:
plots of ground being part of the
townland of Ballynabearna in the
barony of Kinlea and county of
Cork; Co Cork
Regd owner: Irish Fertilizer
Industries Limited; folios: 58810
and 57639F; lands: plots of
ground being part of the townland of Marino in the barony of
Barrymore and county of Cork;
Co Cork
Regd owner: Shane Jennings; folio:
64536F; lands: plots of ground
being part of the townland of
Ballydaheen (Ed Clonpriest) and
of Youghal Park (Ed Clonpriest)
in the barony of Imokilly and
county of Cork; Co Cork
Regd owner: Martin and Mary
Jolley; folio: 8495F; lands: a plot
of ground being part of the
townland of Ballygroman Lower
and barony of Muskerry East
and county of Cork; Co Cork
Regd owner: Sarah J Murray
(deceased); folio: 9764F; lands:
plots of ground being part of the
DUBLIN SOLICITORS’
PRACTICE OFFERS
AGENCY WORK
IN NORTHERN
IRELAND
* All legal work undertaken
on an agency basis
* All communications to clients
through instructing solicitors
* Consultations in Dublin if required
Contact: Séamus Connolly
Moran & Ryan, Solicitors,
Arran House,
35/36 Arran Quay, Dublin 7.
Tel: (01) 872 5622
Fax: (01) 872 5404
e-mail: [email protected]
or Bank Building, Hill Street
Newry, County Down.
Tel: (0801693) 65311
Fax: (0801693) 62096
E-mail: [email protected]
LawSociety
Gazette
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Lost land certificates – €46.50 (incl VAT at 21%)
Wills – €77.50 (incl VAT at 21%)
Lost title deeds – €77.50 (incl VAT at 21%)
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HIGHLIGHT YOUR ADVERTISEMENT BY PUTTING A BOX AROUND IT – €30 EXTRA
All advertisements must be paid for prior to publication. Deadline for July
Gazette: 18 June 2004. For further information, contact Catherine Kearney or
Valerie Farrell on tel: 01 672 4828 (fax: 01 672 4877)
townland of Knocknagorty in
the barony of Cork and county
of Cork; Co Cork
Regd owner: William O’Brien,
folio: 22459; lands: plots of
ground being part of the townland of Raleigh South in the
barony of Muskerry West and
county of Cork; Co Cork
Regd owner: Jeremiah and Eileen
O’Mahony; folio: 3559F; lands: a
plot of ground being part of the
townland of Loughbeg in the
barony of Kerrycurrihy and
county of Cork; Co Cork
Regd owner: Denis and Gobnait
Kelly; folio: 35710F; lands: a plot
of ground known as 4 Shandon
Court situate in the parish of St
Anne’s, Shandon and county
borough of Cork; Co Cork
Regd owner: Patrick R Barry; folio:
30405; lands: plots of ground
being part of the townland of
Banduff in the barony of Cork
and county of Cork; Co Cork
Regd owner: Michael Harrington;
folio: 28116; lands: plots of
ground being part of the townland of Lackavane in the barony
of Bear and county of Cork; Co
Cork
Regd owner: Richard J and Mary C
Moloney; folio: 46921F; lands:
plots of ground being part of the
townland of Ballincollig in the
barony of Muskerry East and
county of Cork; Co Cork
Regd owner: Gerard Roche and
Majella McDonnell; folio:
59187F; lands: plots of ground
being part of the townland of
Ballymacallen in the barony of
Fermoy and county of Cork; Co
Cork
Regd owner: Anne Twomey; folio:
5955F; lands: plots of ground
being part of the townland of
Ullanes West in the barony of
Law Society Gazette
June 2004
Muskerry West and county of
Cork; Co Cork
Regd owner: John E Boyle, Ardara,
Co Donegal; folio: 5605; lands:
Drumbaran;
area:
0.0025
hectares and 0.0164 hectares; Co
Donegal
Regd owner: David Craig, Naran,
Portnoo, Co Donegal; folio:
13835F; lands: Naran; area:
0.210 hectares; Co Donegal
Regd owner: John Diver,
Carnagane,
Moville,
Co
Donegal; folio: 29033F; lands:
Ballynally; Co Donegal
Regd owner: Pauline Murray, 48
Solomon’s Hill, Glencar Scotch,
Letterkenny, Co Donegal; folio:
45784F; lands: Glencar Scotch;
Co Donegal
Regd owner: Geraldine Browne,
Porthall, Lifford, Co Donegal;
folio: 6525F; lands: Coneyburrow; Co Donegal
Regd owner: Michael Slevin,
Ruskey, Convoy, Co Donegal;
folio: 565R; lands: Roosky
Upper; area: 15.7195 hectares;
Co Donegal
Regd owner: William Doherty, The
Rock, Churchill, Letterkenny,
Co Donegal; folio: 40484; lands:
Manorcuningham Churchland
Isle; area: 0.8093 hectares; Co
Donegal
Regd owner: Samuel McElhinney,
Manorcunningham, Co Donegal; folio: 7672F; lands:
Raymoghy; Co Donegal
Regd owner: Patrick Augustine
Daly; folio: DN14296L; lands:
property situate on the east side
of Ballygall Road East in the
parish of Finglas and district of
Finglas North; Co Dublin
Regd owner: Jane McCrudden;
folio: DN5359F; lands: property
situate in the townland of
Rush and barony of Balrothery;
Professional
information
Co Dublin
Regd owner: John Handley and
Niamh Larrissey; folio: DN
61300L; lands: property known as
6 Homelawn Villas situate in the
parish and district of Tallaght; Co
Dublin
Regd owner: Thomas O’Toole; folio:
35684F; lands: Co Dublin; Co
Dublin
Regd owner: Eoin Quinn and Cathy
Quinn; folio: DN10673; lands:
property situate in the townland
of Ballinascorney Lower and
barony of Uppercross; Co
Dublin
Regd owner: Aylmer J Walsh and
Brigid Walsh; folio: DN9521L;
lands: property situate on the west
side of Killiney Hill Road in the
parish of Kill and borough of Dun
Laoghaire; Co Dublin
Regd owner: Thomas Nolan; folio:
8253; lands: property situate in
the townland of Newtown,
Castlebyrn Division; Co Dublin
Regd owner: Colm Byrne; folio:
DN122034F; lands: property situate in the townland of
Huntstown and barony of
Castleknock; Co Dublin
Regd owner: Eastern Health Board;
folio: DN6232; lands: (1) a plot of
ground being part of the townland of Yellow Walls and barony
of Uppercross, (2) a plot of
ground situate in the townland of
Ballydowd and barony of
Newcastle, (3) a plot of ground
situate on the south side of Lucan
Road situate in the townland of
Ballydowd and barony of
Newcastle, (4) a plot of ground
situate on the south side of the
Lucan Road situate in the townland of Ballydowd and barony of
Newcastle, (5) a plot of ground
situate to the south of the Lucan
Road situate in the townland of
Ballyowen and barony of
Newcastle, (6) a plot of ground
situate to the south of the Lucan
road situate in the townland of
Yellow Walls and barony of
Uppercross; Co Dublin
Regd owner: Caitriona Scanlon;
folio: DN128699F; lands: property at 113 Sundale Park, Tallaght,
Dublin 24; Co Dublin
Regd owner: SPH Properties
Limited; folios: 16468, 36080F,
60840F, 65207F; lands: commercial
premises
at
Lower
Ballymount Road, Walkinstown,
Dublin 11, being the premises
comprised in the above folios; Co
Dublin
Regd owner: Vincent Cosgrove;
folio: DN10961; lands: property
situate in the townland of
Rathcoole and barony of
Newcastle; Co Dublin
Regd owner: Martin F O’Malley;
folio: 1244F; lands: townland of
Cloon and barony of Ballynahinch; area: 1 acre; Co Galway
Regd owner: Philip O’Connor; folio:
46355; lands: Galway; Co
Galway
Regd owner: Thomas Lydon; folio:
22257; lands: townland of
Dangan Lower and barony of
Galway; area: 2.0610 hectares and
14.75 hectares; Co Galway
Regd owner: Daniel Relihan; folio:
25783; lands: townland of
Knocknacaheragh and barony of
Iraghticonnor; Co Kerry
Regd owner: Breda Galway; folio:
3676; lands: Baronsland and
barony of Gowran; Co Kilkenny
Regd owner: Irish Shell and BP
Limited, 13/16 Fleet Street,
Dublin; folio: 18502; lands:
Knockmacrory; area: 0.2858
hectares; Co Leitrim
Regd owner: Michael Callanan;
folio: 11295; lands: townland of
Castlefarm and barony of
Smallcounty; Co Limerick
Regd owner: Leslie D Hartigan;
folio: 27061; lands: townland of
Stradbally North and barony of
Clanwilliam; Co Limerick
Regd owner: John and Philomena
Power; folio: 2267 Co Limerick;
lands: townland of Ballyvockoge
and barony of Connello Lower;
Co Limerick
Regd owner: John Donald, James
McCourt & Son, Solicitors,
Francis Street, Dundalk, Co
Louth; folio: 1570L; lands: Long
Avenue; area: 0.0202 hectares; Co
Louth
Regd owner: Michael Murphy, 22
Eaton Square, Terenure, Dublin;
folio: 8264 and 8421; lands:
Cornamucklagh; area: 0.578
hectares; Co Louth
Regd owner: Joseph C Garvey; folio:
30301; lands: townland of (1), (2),
(3) and (4) Curraghadooey and
barony of Clanmorris; area: (1) 1
acre, (2) 11 perches, (3) 13 acres, 3
roods, 24 perches and (4) 4 acres,
1 rood, 30 perches; Co Mayo
Regd owner: Edward Flood,
Halfcarton, Oldcastle, Co Meath;
folio: 8967R; lands: Halfcarton;
area: 1.7704 hectares; Co Meath
Regd owner: Jean Anderson, Glear,
Newbliss, Co Monaghan; folio:
3687; lands: Drummullan; area:
4.7373 hectares; Co Monaghan
Regd
owner:
Patrick
and
Phyllis Callan, Killygavna,
Tyolavnet, Co Monaghan; folio:
4065F; lands: Killygavna; area:
0.319 acres; Co Monaghan
Regd owner: David Patton Limited,
Market Street, Monaghan; folio:
20328; lands: Drumgarran and
Telaydan; area: 1.9728 hectares
and 0.0759 hectares; Co
Monaghan
Regd owner: Martin and Sandra
Reynolds; folio: 14549; lands:
Edenderry on the south side of St
Francis Street in the town of
Edenderry and barony of
Coolestown; Co Offaly
Regd owner: Andrew Gilmartin;
folio: 19054; lands: townland of
Creevykeel and barony of
Carbury; area: 4.7854 hectares;
Co Sligo
Regd owner: William Costello; folio:
4682; lands: townland of Graniera
and barony of Kilnamanagh
Upper; Co Tipperary
Regd owner: Noreen Moynihan;
folio: 3072F; lands: townland
of Kilmacogue/Annaholty/Gortshane East and barony of Owney
and Arra; Co Tipperary
Regd owner: Wray and Heather
Platt; folio: 12556F; lands: townland of Lacka and barony of
Lower Ormond; Co Tipperary
Regd owner: Thomas and Mary
Carew; folio: 11968; lands: townland of Lackenacoombe and
barony of Kilnamanagh Lower;
Co Tipperary
Regd owner:
Esmond and
Bernadette Coughlan; folio:
249L; lands: Seafield and barony
of Ballaghkeen North; Co
Wexford
Regd owner: Lucan Spa Hotel Ltd;
folio: 4420F; lands: Ballyedmund
and barony of Ballyaghkeen
North; Co Wexford
Regd owner: John Condren
(deceased); folio: 12354; lands
Killybegs and barony of Gorey;
Co Wexford
WILLS
Byrne, Myles Patrick (Jack)
(deceased), late of 101 Springhill
Avenue, Deansgrange, Co Dublin.
Would any person knowing the
whereabouts of the deceased’s will
please contact Matheson Ormsby
Prentice, Solicitors, 30 Herbert
Street, Dublin 2; tel: 01 619 9000;
fax: 01 619 9010
Curtis, Gerald (deceased), late of 29
College Park, Terenure, Dublin 6W.
Would any person having any
knowledge of a will made by the
above named deceased, who died on
or about the 11 March 2004, please
contact Frank Ward & Co,
Solicitors, Equity House, Upper
Ormond Quay, Dublin 7; tel: 01 873
2499, fax: 01 873 3484
Dundon, James (deceased), late of
32 Collins Park, Abbeyfeale, Co
Limerick. Would any person having
knowledge of a will made by the
above named deceased, who died on
25 February 2004, please contact:
Stephen J Daly, Solicitors, The
Square, Abbeyfeale, Co Limerick;
tel: 068 31300, fax: 068 31005
Edwards, Thomas F (deceased),
late of 5 Waverley Terrace, Dublin 6,
formerly of 21 Eden Quay, Dublin 1.
Would any person having any
knowledge of the whereabouts of a
will made by the above named
deceased please contact Woodcock
& Sons, Solicitors, 28 Molesworth
Street, Dublin 2; ref: PW
Ferguson, Val, otherwise Denis V
Ferguson, late of 6 Glenfarne Road,
Raheny, Dublin 5; 141 St Declan’s
Road, Marino, Dublin 11; Shanrath
Road, Whitehall, Dublin 9. Would
any person having knowledge of
the whereabouts of a will made
by the above named deceased,
who died on 10 March 2004 at
the South Infirmary Hospital,
Cork, please contact Murphy
and Condon, Solicitors, Bank
Buildings, 2 Shandon Street, Cork;
tel: 021 439 7655, e-mail murcond@
indigo.ie; reference: DF M/P 179
Flanagan, John Francis (deceased),
late of Brook Cottage, Sixmilebridge,
Co Clare, and late of Santa Cruz,
Tenerife. Would any person having
knowledge of a will made by the
above named deceased, who died on
21 March 2004 in Tenerife, please
contact
Risteard
Crimmins,
Crimmins & Company, Solicitors,
Dolmen House, Shannon Town
Centre, Co Clare; tel: 061 361 088,
fax: 061 361 001
Hurley, Margaret (deceased), late
of Knocknasuff, Blarney, Co Cork.
Would any person having any
knowledge of the whereabouts of a
will made by the above named
deceased, who died in December
1964, please contact Diarmaid
59
Professional
information
Falvey, Solicitors, 40 The Mall,
Cork; tel: 021 427 1077
Lacy, William (builder) (deceased),
late of St Patrick’s (Abbey House),
Abbey Street, Howth, Co Dublin,
and formerly of ‘Highfield’,
Thormanby Road, Howth, Co
Dublin. Would any person having
knowledge of a will made by the
above named deceased, who died on
25 October 1923 at St Patrick’s
(Abbey House), Abbey Street,
Howth, Co Dublin, please write to:
Miss Deirdre I Lacy, Ballymilish,
Dungriffin Road, Howth, Co
Dublin (granddaughter) or telephone: 087 287 9105.
McGuill, Ellen (deceased), late of
76/78 Parnell Street in the city of
Dublin. Would any person having
any knowledge of a will made by the
above named deceased, who died on
1 April 2002, please contact James
Fagan & Company, Solicitors,
57 Parnell Square West, Dublin 1;
tel: 01 872 7655; reference: MB/
11776
Murtagh,
Patrick
(Paddy)
(deceased), late of 44 Hammond
Street, Dublin 2 and 28 Eden Quay,
Dublin 1. Would any person having
knowledge of a will made by the
above named deceased, who died on
13 April 2004, please contact Aitken
Clay & Collins, Solicitors, 17
Fitzwilliam Square, Dublin 2
O’Sullivan,
Joseph
Patrick
(deceased), late of 7a O’Connorville,
Tower Street, Cork. Would any person having any knowledge of the
whereabouts of a will made by the
above named deceased, who died on
3 March at Cork University
Hospital, please contact Finnian
Dullea of Kelly & Dullea, Solicitors,
5 South Mall, Cork; tel: 021 494
4666, fax: 021 494 4699, e-mail: [email protected]
individual with extensive business
experience available for immediate
start. Ten months’ experience as a
legal assistant with a family-run law
firm and knowledge gained in the
area of litigation, private client and
applications for refugee status; any
area considered; tel: 087 990 8225
Apprenticeship sought; all areas
considered. I have passed four FE1s and confidently await the results
for the final four this June. Highly
qualified, with first-rate IT skills
and excellent references. Particularly
interested in conveyancing but will
consider all options. Contact Mr
Hilary Delahunty at 087 941 3705;
e-mail: [email protected]
Experienced conveyancing and
probate solicitor seeks part-time
employment in Kildare or Midlands
area. Please reply to box no 50/04
Hardworking, focused and reliable law student seeks trainee
solicitor position in the south-east
of Ireland. Strong academic background, including honours degree.
First Irish exam and six FE1 exams
passed to date. Eight years’ experience in information technology and
six months’ experience working as a
legal executive. Please contact Ian
on 087 638 0393 or see www.legalapprentice.com for more details
Part-time position available, with
knowledge of conveyancing and litigation and with keyboard skills to
assist busy principal, Four Courts
area, Dublin; reply: 01 671 8800
Solicitor required for conveyancing and probate practice in Mallow,
Co Cork office. Apply with CV to
box no 51/04
Solicitor wanted, Waterford city.
Background in general practice a
requisite for busy small-to-mediumsized firm. Please reply with CV to
box no 52/04
www.liquidations.ie
For information on insolvency, employees entitlements,
defending a section 150 application, informal schemes
of arrangement, dealing with the sheriff, services to
solicitors and free Insolvency Helpline Service.
MISCELLANEOUS
England and Wales solicitors will
provide comprehensive advice and
undertake contentious matters.
Offices in London, Birmingham,
Cambridge and Cardiff. Contact
Levenes Solicitors at Ashley House,
235-239 High Road, Wood Green,
London 8H; tel: 0044 2088 17777,
fax: 0044 2088 896395
Dublin city centre practice for
sale. Average annual fee income
€165,000. Application to box no
53/04
Dublin 8, 215sqm ground
floor offices near Four Courts,
11/2 yr double rent allowance,
short lease, four car places.
Phone 01 670 9199
PROFESSIONAL
MUSLIM SINGLES
MATRIMONIAL EVENT
in Dublin, 16 June.
Contact: +44 7980 001426
or + 44 7876 042660.
E-mail:
[email protected]
Website:
www.kamranabegevents.com
London solicitors will be pleased
to advise on UK matters and
undertake agency work. We
handle probate, litigation, property and company/commercial.
Parfitt Cresswell, 567/569 Fulham
Road, London SW6 1EU,
DX 83800 Fulham Broadway; tel:
0044 20738 18311, fax: 0044
20738 16723, e-mail: arobbins@
parfitts.co.uk
Office accommodation
available to let
Near Four Courts, 3000 sq feet,
well laid out in combination of
open space and enclosed offices,
including reception area and
meeting room; rent €18 per sq
foot plus three parking spaces;
modern mixed occupancy building. Contact box no 48/04
Exciting opportunity. Residential conveyancing solicitor
required for Limerick city practice with at least two years’ pqe.
Ideal candidate will work with a
dynamic team with a modern
approach, excellent remuneration package and commissions
guaranteed. We require a highly
motivated, ambitious self-starter
who can work on his/her own
initiative. Please apply by e-mail
to: [email protected]
EMPLOYMENT
Apprenticeship required, Dublin
area. Eleven years’ work experience
in multinational environment and
service industry. Two years’ legal
executive experience, conveyancing
and litigation (commercial and private). Excellent administration and
IT skills; tel: 087 975 8184
Apprentice solicitor available. A
resourceful, focused, personable
60
Solicitor required for general
practice in Ennis. Experience in
conveyancing preferable. Please
reply to Cashin & Associates,
Solicitors, 3 Francis Street, Ennis,
Co Clare; tel: 065 684 0060, e-mail:
[email protected]
LOCUMS REQUIRED
If you are interested in locum work, email a copy of
your curriculum vitae and a short covering letter to
Trina Murphy in the Law School.
You should also state the area of law you are interested in
and the locations you are prepared to travel to.
Solicitor seeks part-time or locum
position in Dublin area in general
practice. Has one year pqe (approx).
Computer literate; tel: 01 668 6901
Law Society Gazette
June 2004
For further details, contact [email protected],
tel: 01 672 4982, or fax: 01 672 4991
Professional
information
Publication of advertisements in this section is on a fee basis and does not
represent an endorsement by the Law Society of Ireland.
LAW AGENCY SERVICES
ENGLAND
NORTHERN
IRELAND
SOLICITORS
& W ALES
SOLICITORS
Established 1825
We will engage in,
and advise on,
all Northern Irelandrelated matters,
particularly personal injury
litigation.
Consultations where
convenient.
• Fearon & Co act for Irish residents in the fields of
probate, property and litigation
• Each solicitor is available by direct line, fax or e-mail.
Conferences can be easily arranged
• Fearon & Co is committed to the use of information
technology to help improve both the quality and
speed of service for the benefits of all clients both at
home and abroad
• The firm’s offices are within half an hour of London
W aterloo station and within a short travel from both
Gatwick and Heathrow airports, with easy access from
the London orbital M25 motorway
PHONE NOW FOR A BROCHURE
W estminster House
12 The Broadway, Woking, Surrey GU21 5AU England
Fax: +44 (0)1483 725807
Email: [email protected]
www.fearonlaw.com
PROPERTY
LITIGATION
PROBATE
John Phillips
Martin Williams
Francesca Nash
Tel: +44 (0)1483 776539 Tel: +44 (0)1483 747250
Tel: +44 (0)1483 765634
OLIVER M
LOUGHRAN
& COMPANY
9 HOLMVIEW TERRACE,
OMAGH,
CO TYRONE
Phone (004428) 8224 1530
Fax: (004428) 8224 9865
e-mail:
[email protected]
Tipperary practice for sale –
great potential. Quick sale required
– principal retiring. Application to
box no 47/04
SPANISH LAWYERS
RAFAEL BERDAGUER
ABOGADOS
TWENTY YEARS ADVISING CLIENTS
IN REAL ESTATE TRANSACTIONS IN SPAIN
PROFILE:
panish Lawyers Firm focused
on serving the need of the foreign investors, whether in company or property transactions and all
attendant legalities such as questions of inheritance, taxation,
accounting and bookkeeping,
planning, land use and litigation in
all Courts.
S
FIELD OF PRACTICES:
eneral Practice, Administrative Law, Civil and Commercial
Law, Company Law, Banking and
Foreign Investments in Spain,
Arbitration, Taxation, Family Law,
International Law, Litigation in all
Courts.
G
Avda. Ricardo Soriano, 29,
Edificio Azahara Oficinas, 4 Planta, 29600 Marbella, Malaga, Spain
Tel: 00-34-952823085 Fax: 00-34-952824246
e-mail: [email protected]
Web site: www.berdaguerabogados.com
Northern Ireland solicitors providing an efficient and comprehensive legal service in all contentious/non-contentious matters.
Dublin-based consultations and
elsewhere. Fee apportionment. ML
White, Solicitors, 43-45 Monaghan Street, Newry, Co Down; tel:
080 1693 68144, fax: 080 1693
60966
Northern Ireland agents for all
contentious and non-contentious
matters. Consultation in Dublin if
required. Fee-sharing envisaged.
Offices in Belfast, Newry and
Carrickfergus. Contact Norville
Connolly, D&E Fisher, Solicitors,
8 Trevor Hill, Newry; tel: 080 1693
61616, fax: 080 1693 67712
Solicitors’ practice for sale. Smallto-medium sole practitioner’s practice for sale; situate in south county
Dublin with good and varied client
base. For further enquiries please
contact: McGinley & Co,
Law Society Gazette
June 2004
Chartered Certified Accountants,
Unit 4, St Jude’s, Oldtown Mill,
Celbridge, Co Kildare; tel: 01 601
2751
TITLE DEEDS
O’Sullivan, Joseph Patrick
(deceased), late of 7a O’Connorville, Tower Street, Cork. Would
any person having knowledge of
storage of title documents relating
to the above named deceased, who
died on 3 March 2002, please contact Finian Dullea of Kelly &
Dullea, Solicitors, 5 South Mall,
Cork; tel: 021 494 4666, fax: 021
494 4699, e-mail: finian@kelly
dullea.com
In the matter of the Landlord and
Tenant Acts, 1967 - 1987 and in
the matter of the Landlord and
Tenant (Ground Rents) (No 2) Act,
1978: an application by Peter
Mulligan
Take notice that any person having
interest in the freehold estate of
the following property: all that and
those the property formerly known
as Savana and Christina’s Fashion,
now trading as bookmakers at
Main Street, Bundoran, in the
county of Donegal, otherwise the
plot of ground with buildings
situate at Main Street, Bundoran,
in the parish of Innismacsaint,
barony of Tirhugh and county of
Donegal.
Take notice that Peter Mulligan
intends to apply to the county registrar for the county of Donegal for
the acquisition of freehold interest
in the aforesaid property, and any
party asserting that they hold superior interest in the aforesaid premises are called upon to furnish evidence of title to the aforesaid premises to the below named within 21
days from the date hereof.
In default of such notice being
received, Peter Mulligan intends to
proceed with the application before
the county registrar at the end of 21
days from the date of this notice and
will apply to the county registrar for
the county of Donegal for directions as may be appropriate on that
basis that the person/persons beneficially entitled to the superior
interest including the freehold
reversion in the premises are
unknown or unascertained.
Date: 4 June 2004
Signed: VP McMullin (solicitors for
the applicant), Tirconnail Street,
Ballyshannon, Co Donegal
61
Recruitment
COMHAIRLE CATHRACH CHORCAI
CORK CITY COUNCIL
Applications are invited from suitably qualified persons for inclusion on a
panel from which appointments may be made to the position of:
EXECUTIVE SOLICITOR
ESSENTIAL REQUIREMENTS:
Candidates shall:
a) Have been admitted and enrolled as a Solicitor in the State
b) Have on the latest date for receipt of completed application forms for the
office, at least five years satisfactory experience as a solicitor, including
adequate experience of court work, after admission and enrolment as a
solicitor, and
c) Possess a high standard of professional training and experience.
SALARY: €40,504, €42,032, €43,565, €45,096, €46,628, €48,159,
€49,689, €51,216, €52,755, €54,283, €56,043 (following three years
service on the maximum) €57,807 (following six years service on the
maximum).
Applicants may be shortlisted on the basis of the information supplied
on the application form.
Application forms and full particulars may be obtained from the
Reception Desk, Cork City Council, City Hall, Cork or alternatively, may
be downloaded from Cork City Council's web site at:
http://www.corkcity.ie/personnel.html
Completed application forms must be returned to the Personnel
Dept., Room 233, Cork City Council, City Hall, Cork, not later than
5pm on Friday, 25th June, 2004.
Candidates should note that interviews may be arranged within a very short time of
the closing date. Cork City Council complies with the provisions of employment
equality legislation.
HUSSEY
FRASER
SOLICITORS
We are a leading Construction Law Firm in Ireland acting on
behalf of many prestigious clients and we are seeking a
Senior Solicitor to join our Construction Law Team.
Reporting to a Senior Partner, the successful candidate will
be a highly motivated and ambitious team player. He/she
will have at least five years pqe ideally in Construction Law,
with a proven track record in litigation/dispute resolution
and/or commercial property contracts.
The position will attract an excellent package and prospects
for advancement.
Replies by the 18th June, in the strictest confidence, to:
Anne Barrett, Personnel Partner,
Hussey Fraser, Solicitors,
17 Northumberland Road, Dublin 4
or email: [email protected]
Hussey Fraser, Solicitors,
www.husseyfraser.ie
62
Law Society Gazette
June 2004
Recruitment
A uniquely responsive approach to
your individual job search
In canvassing with each candidate his or her aims and ideals,
s an experienced UK barrister turned legal consultant, Catrin
our consultants take care to ensure that all career options have been
Prys-Williams knows about the impact of lifestyle choices on
adequately explored by highlighting the benefits of the various
a career change. Having worked in the recruitment sphere in
practice environments.
London, Sydney and Singapore Clare Reed, also a legal consultant
A discussion about the larger practices will focus on the extenat Meghen Group, has gained a thorough understanding of the
sive client base, worldwide recognition and fast-paced, challengdiverse work environments and cultures across the world. By virtue
ing work offered there in addiof their backgrounds both contion to the way in which
sultants are especially sensitive
each large practice differs in
to the fact that every role and
terms of structure and ethos.
every candidate is unique.
A solicitor may ideally wish
Each legal professional canto move to a medium size pracdidate contacting Meghen
tice because of the potential
Group has varying needs and
for career progression, the
ambitions. Factors that can
prospect of working as part of
influence the decision to change
smaller team focusing on a
jobs and the type of position
niche area and the appeal of
sought include career progreshaving wider exposure to a
sion, work/life balance, salary,
deal in its entirety. A small
location and work environment.
practice may appeal because
At Meghen Group we
CATRIN PRYS-WILLIAMS AND CLARE REED
of the high degree of client
understand the importance of
contact and the ability to deal
listening to candidates’ needs
with a case continuously from start to finish.
and of sharing the vision each individual has for his or her future
Whatever the driving ambition in seeking to move within the
career. During a personal consultation each solicitor is given the
legal circle we can offer advice, guidance and a discreet approach
opportunity to clearly define his or her personal job search criteria
throughout the job search process.
and will receive comprehensive, industry-specific advice.
A
BELOW IS A SELECTION OF THE CURRENT ROLES AVAILABLE THROUGH MEGHEN GROUP:
■ Senior Construction Lawyer
■ Corporate Finance Lawyer
An exceptional opportunity for a senior construction lawyer
with 4+ years PQE. Acting for building contractors you will
advise on contracts, tenders and EU procurement in a predominantly contentious role. This role offers excellent career development prospects and a supportive small team environment.
This top tier firm is looking for a corporate finance lawyer with
experience in M&A’s, MBO’s and inward investment. You will
need excellent drafting and advisory skills with 2-4 years PQE,
preferably gained within a top tier environment.
■ General Practitioner
■ In-House Legal Compliance
An exciting chance to join this global financial group. A legal
advisor is required to review compliance and provide updates
on EU directives and domestic legislation capable of impacting
on the business. Experience in money laundering and insiderdealing legislation would be beneficial.
■ In-House Legal Advisor
An excellent opening has arisen in this international asset management company for a 0-2 years PQE lawyer. Experience in
Irish and European company law, corporate governance and
structuring issues is required. Previous experience in the financial sphere would be beneficial.
A versatile solicitor with 3-6 years PQE is sought for this exciting
opportunity to join this medium sized practice in South Dublin.
With an emphasis on conveyancing this role will be varied and
challenging.
■ Locum Solicitors
With contracts ranging from 3-6 months, if you have 4-5 years
PQE and are multi- disciplined or highly specialised we would
welcome the opportunity to discuss these opportunities with you.
■ Commercial property
Meghen Group is dealing with a number of positions in this discipline, one of which may be ideal for you if you have 4 + years PQE
with experience in secured lending, construction and exposure to
large-scale developments, disposals and acquisitions.
FOR A CONFIDENTIAL CONSULTATION, WHATEVER YOUR LEGAL CAREER ASPIRATIONS,
PLEASE CONTACT CATRIN OR CLARE ON 01 433 9028 OR AT [email protected]
Law Society Gazette
June 2004
63
Recruitment
64
Law Society Gazette
June 2004